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The City and the World
YISHAI BLANK*
What role do cities play in the emerging global legal
order? Over the past two decades cities have become
objects of international and transnational regulation,
and they have also begun enforcing international
legal norms and standards. This transformation is
part of an emerging global order that reconfigures
cities and utilizes them in order to advance various,
often
conflicting
ideological
and
political
commitments. While there is a burgeoning body of
literature on the globalization of cities, that literature
has ignored the legal dimension of this phenomenon.
This Article fills that gap and shows how “local” law
impacts on “global” change. And while there is a
growing body of literature dealing with the rise of
non-state actors in international law and politics, that
literature has overlooked the emergence of cities as
independent agents. Drawing on examples from
across the globe, the Article demonstrates that cities
are gaining independent status and are functioning as
vessels through which world norms reach individuals
and communities. An important implication of the
analysis is that we should recognize cities’ singular
role as normative mediators between the world and
the state. This function of cities is crucial because of
their special characteristics as democratically
organized communities in which place is not only
imagined, but lived.
∗ Buchmann Faculty of Law, Tel-Aviv University; LL.B., B.A. (Phil.), Tel-Aviv
University, 1997; LL.M., Harvard Law School, 1999; S.J.D., Harvard Law School, 2002. I
thank Eyal Benvenisti, Nili Cohen, Hanoch Dagan, Aeyal Gross, Sharon Hannes, Karen
Knopp, Roy Kreitner, Shai Lavi, Menny Mautner, Guy Mundlak, Ariel Porat, and Dori
Spivak for helpful comments and suggestions. David Barron and Jerry Frug helped me to
rethink and reformulate my ideas in a profound way. Ruthy Weysenbeek and Nimrod Karin
provided helpful research assistance. Jerry Frug’s and David Barron’s work on similar
issues has benefited me immensely. I also thank the participants of the Tel-Aviv Faculty of
Law faculty seminar, the American Bar Foundation seminar, and the Tel-Aviv-Northwestern
Law School Faculty Exchange Workshop for helpful comments and suggestions.
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I.
II.
III.
IV.
V.
VI.
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INTRODUCTION .......................................................................870
LOCAL GOVERNMENTS AND GLOBALIZATION ........................874
A. Globalization..................................................................875
B. Cities and Globalization.................................................878
C. A New Legal Order: Trinity Instead of Two Pairs .......881
LOCALITIES’ LEGAL STATUS IN INTERNATIONAL LAW ...........883
A. The Locality as an International Legal Concept ............883
B. Local Governments’ Lack of Legal Personality in
International Law...........................................................884
C. Local Governments:
Between Democracy and
Bureaucracy ...................................................................887
THE EMERGENCE OF INTERNATIONAL/TRANSNATIONAL
NORMS AND INSTITUTIONS THAT TRANSFORM LOCALITIES’
LEGAL STATUS .......................................................................891
A. Localities’ Assumption of International/Transnational
Duties and Authorities ...................................................892
1. International Charters and Covenants and
Customary International Law ...................................893
2. Regional and Other Non-UN International and
Transnational Treaties ..............................................896
B. Localities Becoming Objects of Global, International,
and Transnational Regulation ........................................899
1. United Nations Reconfiguration of Localities:
Decentralization and Democracy .............................900
2. The World Bank’s Regulation of Localities:
Transforming Decentralization.................................907
3. Regional Experiences: Europe and NAFTA ...........912
C. Localities Becoming Enforcers of International
Norms and Standards .....................................................914
1. Adoption of International Norms by Localities........914
2. Where States Fail, Local Governments Might
Succeed.....................................................................918
3. The Globalization of International Law ...................919
D. Local Governments Becoming Political Actors on the
World Political Stage .....................................................922
RECONSTRUCTING THE NEW TRINITY .....................................924
CONCLUSION ..........................................................................930
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I.
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INTRODUCTION
Around the globe, localities1 are beginning to confront the
world as norm rather than as mere fact. The world, a multilayered
web of intricate economic, technological, cultural, and societal facts,
is increasingly becoming a set of norms and an amalgamation of
norm-generating institutions attempting to acquire jurisdiction over
localities, turning them into legal entities in the global sphere. The
evolution of international, transnational, and global institutions and
norms that are by choice or accidentally growing to govern and
manage localities worldwide has the potential to transform both the
post-WWII international legal order and existing legal orderings of
the relationships between localities and states across the globe. In
international law and within various international organizations
(IOs), localities gradually acquire status and standing. And in many
jurisdictions around the world, transnational entities, IOs, and
international norms slowly begin to impact and reshape local
government law, meaning the rules that govern the powers and duties
of localities within a state. Hence, this Article aims to illuminate the
legal transformation that has the potential to reconfigure the
relationships between localities, states, and IOs. This transformation
is best understood as an important, yet almost hidden part of the legal
developments that accompany the onward march of globalization.
A vast body of social science literature such as geography,
sociology, and urban planning has emerged in the past decades,
describing various aspects of the interaction between localities and
the world, an interaction taking place in “world” or “global” cities,
where global capital, goods, governance, business, and workforce are
all concentrated.2 But while such cities have been researched and
described as economic, technological, and social phenomena, they
1. Throughout the Article, I use the terms “locality and “local government”
interchangeably, and I use both as strictly legal concepts. While in other fields of
knowledge such as sociology, philosophy, economics, and urban planning the term
“locality” or “city” often refer to a spatial, economic, or social phenomenon that not always
corresponds to the legal entity of the legally incorporated locality, in this Article the
emphasis is on the legal entity. Indeed, as Frug and Barron argue, one of the confusions in
the non-legal literature dealing with cities is that often they view a whole metropolitan area
as one city, ignoring the legal context in which various localities within the same area
operate. See Gerald E. Frug & David J. Barron, International Local Government Law,
URBAN LAW. (forthcoming 2006).
2. The term “global cities” was coined and developed by the famous urban sociologist
Saskia Sassen in her groundbreaking book. SASKIA SASSEN, THE GLOBAL CITY: NEW YORK,
LONDON, TOKYO (1991). “World cities” is a term often used to describe the same
phenomena. See, e.g., PETER HALL, THE WORLD CITIES (1984); WORLD CITIES IN A WORLDSYSTEM (Paul L. Knox & Peter J. Taylor eds., 1995); WORLD CITIES BEYOND THE WEST:
GLOBALIZATION, DEVELOPMENT AND INEQUALITY (Joseph Gugler ed., 2004).
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have not yet been analyzed as legal entities, constructed by law and
by legal institutions, and responding to legal changes. Furthermore,
less “global” localities, such as medium sized cities, as well as other
types of localities such as towns, villages, and suburbs are left out of
most theorizations as if they did not experience any globalizationrelated changes, and as if they somehow remain in a completely
national legal order.
And though much has been written on the extension of
international law over non-state actors such as individuals,3 minority
groups,4 multinational corporations,5 national liberation movements,6
and other civil society elements,7 localities have been overlooked.
Hence, the role of international law in regulating one of the most
important aspects of globalization—the changes that localities
undergo as part of it and their role in bringing it about—was almost
entirely ignored.8
But recent legal activities tell a different story, which this
Article documents, of a profound shift in the way localities function
legally in the international and national spheres. The most significant
activities include, first, the establishment of United Nations (UN)
agencies that are centered around issues of local self-government and
decentralization of powers including the formulation of a draft World
Charter. Second, localities internalize international norms into their
local legal systems and enforce such norms. Third, numerous
associations that represent local governments in global governance
projects begin to appear. And, lastly, administrative and judicial
bodies that regulate the relations between localities and states
become more prominent. Through these developments, localities are
increasingly becoming prominent actors in the new global
configuration.
As legal entities, localities exist in two distinct legal spheres:
the national and international. Hence, the analytical gap concerning
the locality as a global legal concept exists in two separate legal
fields: in the field of international law and in the many fields of
national law. It is the goal of this Article to describe in some detail
3. The rise of the individual as the bearer of rights and duties in international law
marks post-World War II, and has been observed by many writers. With the establishment
of the International Criminal Court (ICC), this process has taken a giant leap forward, since
private persons became now subjects of international criminal law.
4. See generally ANNA MEIJKNECHT, TOWARDS INTERNATIONAL PERSONALITY: THE
POSITION OF MINORITIES AND INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2002).
5. MALCOLM N. SHAW, INTERNATIONAL LAW 223–25 (5th ed. 2003).
6. Id. at 220–23.
7. Id. at 223–25.
8. An article recently published by Frug and Barron is a rare example of such legal
analysis. See generally Frug & Barron, supra note 1.
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the emergence of local governments in legal doctrine and thought, in
both fields. By looking at various sources of international and
transnational law, and at the activities of international and
transnational institutions such as the UN, the North American Free
Trade Agreement (NAFTA), and the European Union (EU), I
demonstrate the extent to which localities have acquired varying
degrees of legal status in international law as actors independent of
the states in which they are located. I analyze the competing
philosophies regarding the role of localities and the way these
conceptions affect the legal attitudes toward them. I also describe
specific case studies in which localities become more involved in the
process of international norm creation, as evidence of the high stakes
they have in the process of internationalization/globalization.9 Not
surprisingly, this process involves a deep reconfiguration of the way
localities are viewed.
They are re-cast as schoolhouses for
democracy (as in the old Tocquevillean idea) and not mere
subdivisions of states; but at the same time they are viewed less as
public entities, and more as elements of civil society like nongovernmental organizations (NGOs) and private corporations and
associations that have emerged as actors in the international plane. In
other words, a conception of local governments as private
corporations whose main goal is to be financially viable and selfsupporting, provide good services to their consumer-residents, and
“foster” democracy (rather than manifest it) is emerging, replacing
the more public-oriented one.10
In addition, I offer preliminary lines of research towards a
better understanding of the various possible dynamics that take place
in national legal systems regarding localities and their interaction
with the world. I look at the way local governments and local
interest groups begin to use international law norms—such as
recognized human rights—in order to advance local agenda and
express local values, sometimes colliding with central governments’
interests and policies. I also analyze ways in which localities are
being “exposed” to global norms and global institutions due to
activities of various local and national actors.11
9. Some writers make a clear distinction between the process of globalization and that
of internationalization. While internationalization is depicted as a well orchestrated program
lead by international actors such as the U.N., aimed at creating a unitary international (and
universal) political and legal system, globalization is described as its wild counterpart—an
erratic amalgamation of economic and cultural processes in which “market” forces and other
unorganized groups impose their different agendas over “receiving” parties. See, e.g., Aeyal
M. Gross, Globalization, Human Rights, and American Public Law Scholarship—A
Comment on Robert Post, 2 THEORETICAL INQ. IN LAW 337, 347–48 (2001).
10. See generally Frug & Barron, supra note 1 (emphasizing this point).
11. In this sense, this Article joins not only critical thought on international law but
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As I show throughout this Article, the rise of localities in
contemporary international law has been accompanied by an
alignment of three main competing sets of reasoning and
justifications. Indeed, these ideologies accompany the legal practice
which I identify and their unique coalition facilitated the emergence
of a unique consensus over the desirability of decentralization and
local empowerment. The first emphasizes the economic efficiency
and development that supposedly comes with decentralization and
local power. The second views localities as instruments for
achieving community empowerment and pluralism. And the third
sees local governments as important vehicles for spreading
democracy throughout the world. While these sets of justifications
sometimes run counter to each other, as a result of their shared
suspicion of and dissatisfaction from powerful national governments,
they are aligned in supporting devolutionary schemes. Thus, all three
modes of justification support the empowerment of local
governments vis-à-vis central ones.
However, since every
decentralization requires some form of central authority that will
decide on the division of powers between different levels of
government and monitor and supervise the coordination between and
functioning of the lower levels, the emerging order also involves
empowering various international entities that function as central
authorities in the international sphere. Since many of the changes I
describe are still fledgling, it is yet less clear how these competing
ideologies will come to terms with ensuing changes that come with
decentralization including growing international supervision, and an
increased competition and inequality among localities not only from
different states but also within the same state.
This Article tentatively examines the merits of the various
justifications given to the process of global decentralization as well
as the possible consequences of such a process, and offers a
theoretical analysis of the direction such a radical transformation
should take, as well as a consideration of the idea that localities be
given an international legal status similar, if not identical, to that of
nation-states. Farfetched as this idea might sound, I argue that it is
necessary to consider it as a thought-experiments since it clarifies the
theoretical underpinnings of the developments that this Article
documents.
also new legal process approaches to international law. See, e.g., Harold Hongju Koh,
Transnational Legal Process, 75 NEB. L. REV. 181 (1996); Anupam Chander, Globalization
and Distrust, 114 YALE L.J. 1193 (2005). As I explain below, my use of legal process
approaches is mainly for descriptive purposes and not for justificatory reasons.
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I argue that local governments in the global age cannot easily
be categorized as being either empowered or weakened by these
multifaceted processes, nor can they be conceptualized as either
gaining sovereignty or losing it. The double-edged sword of
acquiring the status of legal person—of having rights and being
burdened by duties—and of being empowered, yet supervised and
regulated, demonstrates itself in all its force with respect to localities
in the global arena. Local governments are gaining standing in
international institutions, yet being closely watched by them.
Localities are becoming the authentic representatives of the people,
yet are required to “democratize” themselves in order to be able to
represent the true will of the people. Also, while states are required
to grant local governments more authority and powers, the latter are
also required to reform themselves and submit to an emerging
“global” jurisdiction. Under this emergent jurisdiction, whose exact
characteristics are still forming, localities seem to acquire features of
semi-private, almost-nonstate actors. The privatized conception of
localities views them first and foremost as financially self-sufficient
entities, whose main goal is to advance private economic
development, and efficiently manage local services to their residents.
II.
LOCAL GOVERNMENTS AND GLOBALIZATION
A large body of literature has accumulated in the past two
decades, dealing with localities and the world. Most of it has
purported to describe the impact of “globalization” on a particular
type of locality—cities. The city, a specific kind of human
settlement with a unique history and sociology, has gained such
academic attention due to its unmatched role in bringing about and
partaking in the process of globalization, in which it supposedly
experiences various intrusions, penetrations, and influences by
global, multinational, or international elements.12 Among the entities
that are said to intrude upon cities are human beings, money, cultural
12. Such processes take place not only in the developed world, but also in the third
world. See generally H. V. SAVITCH & PAUL KANTOR, CITIES IN THE INTERNATIONAL
MARKETPLACE: THE POLITICAL ECONOMY OF URBAN DEVELOPMENT IN NORTH AMERICA AND
WESTERN EUROPE (2002) (describing ten cities in North America and western Europe);
GLOBAL NETWORKS, LINKED CITIES (Saskia Sassen ed., 2002) (describing cities in
developing countries like Sao Paulo and Beirut); GLOBALIZING CITIES: A NEW SPATIAL
ORDER? (Peter Marcuse & Ronald van Kempen eds., 2000) (dealing with cities in
developing countries such as Calcutta, Rio de Janeiro, and Singapore, and in developed
countries like New York, Tokyo, Brussels, and Frankfurt); ILLEGAL CITIES: LAW AND
URBAN CHANGE IN DEVELOPING COUNTRIES (Edesio Fernandes & Ann Varley eds., 1998)
(cities in developing countries such as Istanbul, Caracas, and more).
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images, and ideas.13 The notion that cities are vulnerable to external
influences is not novel. A hundred years ago, the French architect Le
Corbusier announced “the city of today can no longer put up military
defense; its boundaries have become a confused and stifling zone
comparable only to a camp of roving gypsies. . . . [T]oday the city’s
gates are in its center. For its real gates are the railway stations.”14
Suggesting that cities can no longer—thanks to technological
innovations and political transformations—be protected by the
borders of the state, Le Corbusier could not have imagined how cities
are becoming even more susceptible to global influences, and how
much more states will be weakened vis-à-vis the world and vis-à-vis
cities.
A.
Globalization
Globalization has come to signify almost every major event
that happens in the world: the rise of the Internet; the fall of
Communism; the spread of McDonalds, Microsoft, Gap, and
Starbucks throughout the world; the emergence of widespread
terrorism; EU expansion; Yugoslavia’s violent collapse; the
establishment of the International Criminal Court (ICC); the
enrichment of the developed world; the impoverishment of the
developing world; global warming; and the appearance of global
anti-globalization social movements. Due to the myriad meanings of
globalization, I shall briefly sketch the discourse relating to it and
focus my exposition on its unique aspects with regard to cities.
Globalization is often understood as the dissemination,
transmission, and dispersal of goods, persons, images, and ideas
across national boundaries. In this sense, some scholars argue that
there is nothing new about globalization and that it is merely a
different name for an old phenomenon;15 that nation-states were
never islands detached from one another and that the modern era has
been marked by the dual and contradictory processes of
nationalization and internationalization.16 Nevertheless, it seems that
globalization marks a real transformation of, and perhaps departure
13. See generally ARJUN APPADURAI, MODERNITY AT LARGE: CULTURAL DIMENSIONS
OF GLOBALIZATION (1996).
14. LE CORBUSIER, THE CITY OF TO-MORROW AND ITS PLANNING 95, 116 (Frederick
Etchells trans., 1987) (1929). Le Corbusier describes what he sees as the decadence of
modern cities, caused by cities’ inability to defend themselves from exterior influence and
invasions and thus organize and manage growth.
15. Be it called “worldliness,” “cosmopolitanism,” or “internationalism.”
16. See generally MARTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE
AND FALL OF INTERNATIONAL LAW 1870–1960 (2002).
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from the current national order in which sovereignty, understood as
the absolute control of the nation, through its political institutions,
over the whole national territory and its populace played a major role.
States across the globe are currently losing the monopoly that they
have possessed during the past two hundred years over economic,
social, and political activities within their territory. They are even
losing their monopoly over the core of sovereignty—the ability to
wage war and defend themselves. And these previously centrallyheld authorities and functions are shifting to the hands of a growing
number of entities: some public17 and some private; some local and
some regional;18 some transnational and others international.19 Thus
at the center of the many phenomena that share the title of
globalization is the core of de-nationalization.20
Indeed, unitary and solidified sovereignty no longer
characterizes states (or any other entity for that matter)—if it ever
did21—and has now been decentralized: vested in the hands of a
growing number of state, post-state and non-state actors.22 In the
American context, a lively debate is taking place in light of the
delegation of various treaty-making powers to non-state actors, a
phenomena recently termed the “new confederalism”: States—rather
than the federal government—are increasingly creating various
entities that become players in the international sphere.23 Yet almost
17. Such public entities include the World Health Organization (WHO), the Universal
Postal Union (UPU), and more. See discussion in LASSA OPPENHEIM, INTERNATIONAL LAW
22 (H. Lauterpacht ed., 8th ed 1955); see also SHAW, supra note 5, at 223–25.
18. Such regional entities include the EU, NAFTA, and more.
19. The ICC is, obviously, the international entity that currently represents the clearest
example of an international threat to states’ sovereignty. However, the establishment of the
U.N.—and its predecessor the League of Nations—already marked a clear dilution of states’
sovereignty.
20. Numerous scholars have developed this idea. See generally JURGEN HABERMAS,
THE POSTNATIONAL CONSTELLATION: POLITICAL ESSAYS (Max Pensky trans., 2001); SASKIA
SASSEN, LOSING CONTROL? SOVEREIGNTY IN THE AGE OF GLOBALIZATION (1996); SASKIA
SASSEN, DE-NATIONALIZATION: TERRITORY, AUTHORITY AND RIGHTS IN A GLOBAL DIGITAL
AGE (2005).
21. Krasner argues that states were never sovereign in the sense that international
political theory described them to be. See generally STEPHEN D. KRASNER, SOVEREIGNTY:
ORGANIZED HYPOCRISY (1999).
22. See generally DAVID J. ELKINS, BEYOND SOVEREIGNTY: TERRITORY AND POLITICAL
ECONOMY IN THE TWENTY-FIRST CENTURY (1995); BEYOND SOVEREIGNTY: COLLECTIVELY
DEFENDING DEMOCRACY IN THE AMERICAS (Tom Farer ed., 1996); BEYOND SOVEREIGNTY:
ISSUES FOR A GLOBAL AGENDA (Maryann Cusimano Love ed., 2d ed. 1998); PROBLEMATIC
SOVEREIGNTY (Stephen D. Krasner ed., 2001).
23. In the American context this debate is usually framed around the “treaty power”
and the constitutionality of delegating treaty making powers to non-federal actors. For a
favorable assessment of these trends, see David Golove, The New Confederalism: Treaty
Delegation of Legislative, Executive and Judicial Authority, 55 STAN. L. REV. 1697 (2003);
Neil Kinkopf, Of Devolution, Privatization, and Globalization: Separation of Powers Limits
on Congressional Authority to Assign Federal Power to Non-Federal Actors, 50 RUTGERS L.
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none of the writers who address the changing nature of sovereignty
and the new world order mention local governments as one of those
non-state actors.24 This Article seeks to illuminate this oversight and
to explain it, in part, by going back to the history of localities in
international law, and by demonstrating the unique status of them in
modern nation-states, reflected in various legal regimes throughout
the world.
However, though the classic sovereign nation-state is, as
Anne-Marie Slaughter noted, “disaggregating into its separate,
functionally distinct parts,”25 it has not at all disappeared, and it still
exerts power and influence both domestically and internationally.
Though states are no longer the sole actors in the world, and other
actors such as IOs, multinational corporations, global networks, civil
society groups, and localities now join them, states still function as
the main subjects and bearers of international law. In addition,
though globalization processes affect many actors within the state,
the state still has considerable influence over these actors. Even as
they shrink, state apparatuses in the developed world are enormous
and still hold vast powers over citizens and residents within their
territory. And though international law, multinational treaties, global
economic forces, and global ideas are perhaps weakening the ability
of states to decide on various policies by themselves, they still
possess vast powers, de jure and de facto. If one considers the
relationship between the state and the localities that are within its
REV. 331 (1998); Chantal Thomas, Constitutional Change and International Government,
52 HASTINGS L.J. 1 (2000); Edward T. Swaine, Does Federalism Constrain the Treaty
Power?, 103 COLUM. L. REV. 403 (2003); Edward T. Swaine, The Constitutionality of
International Delegations, 104 COLUM. L. REV. 1492 (2004). Other writers are much more
critical towards this trend for various reasons grounded in the U.S. Constitution (mainly the
non-delegation doctrine). See, e.g., Ernest A. Young, The Trouble with Global
Constitutionalism, 38 TEX. INT’L L.J. 527 (2003); Julian G. Ku, The Delegation of Federal
Power to International Organizations: New Problems with Old Solutions, 85 MINN. L. REV.
71 (2000).
24. See, e.g., Peggy Rodgers Kalas, International Environmental Dispute Resolution
and the Need for Access by Non-State Entities, 12 COLO. J. INT’L ENVTL. L. & POL’Y 191
(2001); Richard A. Rinkema, Enviromental Agreements, Non-State Actors and the Kyoto
Protocol: A “Third Way” for International Climate Action?, 24 U. PA. J. INT’L ECON. L. 729
(2003); Franklin G. Snyder, Sharing Sovereignty: Non-State Associations and the Limits of
State Power¸ 54 AM. U. L. REV. 365 (2004); Duncan B. Hollis, Why State Consent Still
Matters—Non-State Actors, Treaties, and the Changing Sources of International Law, 23
BERKELEY J. INT’L L. 137 (2005).
25. See Anne-Marie Slaughter, The Real New World Order, 76 FOREIGN AFF. 183,
183–84 (Sept./Oct. 1997); see also ANNE-MARIE SLAUGHTER, THE NEW WORLD ORDER
(2004). The powerful argument made by Professor Slaughter, concerning the emergence of
global networks of the various “parts” of the declining state, has gained considerable support
by various scholars. See, e.g., Catherine Powell, The Role of Transnational Norm
Entrepreneurs in the U.S. “War on Terrorism,” 5 THEORETICAL INQUIRIES IN LAW 47, 52–53
(2003); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223 (1999).
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territory, the state usually has an enormous amount of control over
them. Later, I will elaborate on the implications that this fact has
over the way international law is implemented with regard to
localities.
It is often thought that globalization is a process of
homogenization, an erasure of differences and flattening out of
distinctions. According to this view, the global is the enemy of
heterogeneity and of difference, and the local becomes the mark of
uniqueness, singularity, and difference. The application of universal
legal standards all over the world is seen as an example of the
homogenizing effects that globalization possesses.26 Unique legal
cultures with different values, distinct beliefs, and idiosyncratic
normative worlds are being erased in favor of universal norms.
However, recent research revealed the fact that as much as it
homogenizes, globalization also produces heterogeneity, and though
some of the processes that are considered part of it do indeed advance
sameness, other global processes actually create difference and
enhance distinctions.27 Indeed, the appearance of “the global”
produces the very notion of “the local.”28 In a process of projection
and reaction, “local” places are produced vis-à-vis the global forces
that appear to be de-localized though they, too, clearly exist
somewhere. Localities throughout the world thus become major
targets of globalization, since they contain so many of the processes
that it comprises. I now turn to examine the role of localities in
globalization.
B.
Cities and Globalization
As I have indicated earlier on, though the process of
globalization did not skip any type of human settlement, cities have
gained the attention of scholars as the main object of globalization. It
is not surprising, given the primacy cities attain in modern social
sciences, and the fascination of sociologists, historians, and
economists with the image of the modern city and the social changes
that it both manifests and brings about. Indeed, more than any other
26. Interestingly, the French philosopher Etienne Balibar once argued that “it will
always be possible to unify commercial law; on the contrary, conceiving what ‘crimes’ and
‘punishments’ are in two opposing moral traditions is far more difficult.” See Etienne
Balibar et al., Globalization/Civilization 1, in DOCUMENTA X 774, 781 (1996).
27. See Etienne Balibar, Globalization/Civilization 2, in DOCUMENTA X 786, 788–90
(1996).
28. See MICHAEL HARDT & ANTONIO NEGRI, EMPIRE 44–46 (2000); DAVID HARVEY,
THE LIMITS OF CAPITAL 374 (1984); APPADURAI, supra note 13, at 178–99; see also Richard
T. Ford, Law’s Territory: A History of Jurisdiction, 97 MICH. L. REV. 843 (1999).
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spatial phenomenon, the city has come to represent modernity, and
urbanization is often understood as the symbol of the departure of
human societies from traditional ways of living. Along this line of
thought that privileges cities over other forms of human settlement,
cities have often been depicted as the frontier of human civilization.29
In an era of globalization, cities are, again, the most prominent sites
of the reconfiguration of the global order in which supra-national and
sub-national entities gain control and influence over area once
dominated by nation-states. The entities that enter the vacuum
created by the decline of states are supposedly, on the one hand,
supra-national entities (such as international bodies, multinational
corporations and networks, and regional organizations like the EU
and NAFTA), and on the other hand, sub-national entities such as
localities, regions (within states), and local communities.
Side by side with their assumption of the role previously
played by the state, cities also become more permeable. The
susceptibility of cities to extra-national intrusions has thus become
the hallmark of the global cities literature. Saskia Sassen and others
have documented in great detail crucial aspects of the process in
which cities emerge as the locus of globalization. Cities are being
influenced by monetary and fiscal policies of the World Bank and the
International Monetary Fund (IMF).30 They are being subjected to
development and planning schemes heralded by global institutions,31
and cities experience an influx of foreign goods and global
corporations. Moreover, at an increasing pace, cities trade and
interact with cities across national lines, leapfrogging above the
bureaucracy and politics of their respective nation-states.32 Hence,
globalization is not only perpetuated by global forces such as IOs and
transnational organizations (TOs), private transnational corporations,
and multinational civil society movements, but also by purely
national entities like cities and other localities.
Thus cities are both targets of globalization and agents of it.
They are becoming connected to other cities in their own states and
also with cities in other countries, international financial institutions,
and TOs. One could roughly divide the impact of globalization on
cities into two main categories: first, an evolution of the complicated
relationship between cities and global forces; second, a
29. See generally LOUIS MUMFORD, THE CULTURE OF CITIES (1938); LOUIS MUMFORD,
THE CITY IN HISTORY: ITS ORIGINS, ITS TRANSFORMATIONS AND ITS PROSPECTS (1961);
PETER HALL, CITIES OF TOMORROW (3d ed. 2002).
30. See William W. Goldsmith, From the Metropolis to Globalization: The Dialectics
of Race and Urban Form, in GLOBALIZING CITIES, supra note 12, at 45–46, 53–54.
31. See generally ILLEGAL CITIES, supra note 12.
32. SASSEN, supra note 2, at 169–90;
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transformation in the traditional relations between localities and
states, following the opening up of cities to the forces of
globalization. While most literature pays attention to the economic,
social, and technological aspects of these two types of
transformations, this Article examines the legal changes that
accompany them.
The broad concept of globalization affecting cities includes
many activities and phenomena that can be divided into four main
categories: direct and indirect foreign investment in cities;33 an
influx of foreign workers into cities;34 business relations between
cities of different countries;35 and the invasion of foreign ideas and
images into cities. While the invasion of foreign capital, workers,
and goods is more intuitively understood, the meaning of the fourth
category—the penetration of foreign ideas and images—is less so.
The global dissemination of ideas and concepts include not only
cultural images but also moral principles and values that mark
globalization as much as the globalized economy. Indeed, this aspect
of globalization is no less important than financial institutions that
invest in localities or foreign workers that migrate to global cities.
International human rights groups, international labor associations,
transnational environmentalist groups, and other global civil society
movements have intense interests—not financial, but rather moral
and ideological—in events that take place across the globe. These
varied interests are reflected in new international legal norms such as
international human rights and environmental protection treaties36
that take a specific interest in localities as the relevant decisionmakers and new political building blocks.
The vast majority of scholars that deal with the topic of
globalization and localities have attempted to assemble a list of cities
that can be called “world cities” or “global cities,” leaving out most
localities and cities in the world as if they were unaffected by
globalization.
Though obviously disparate in its impact,
globalization hits every human settlement. As we shall see, the
reconfiguration of the relations between cities, states, and IOs and
33. See Christof Parnreiter, Mexico: The Making of a Global City, in GLOBAL
NETWORKS, supra note 12, at 154–62; see also Felicity Rose Gu & Zital Tang, Shanghai:
Reconnecting to the Global Economy, in GLOBAL NETWORKS, supra note 12, at 279–81.
34. See Sueli Ramos Schiffer, Sao Paulo: Articulating a Cross-Border Region, in
GLOBAL NETWORKS, supra note 12, at 225–27.
35. A growing body of literature deals with the evolution of “networks of cities” and of
“systems of cities” whereby world cities form webs economic and cultural relations. See
David Smith & Michael Timberlake, Hierarchies of Dominance Among World Cities: A
Network Approach, in GLOBAL NETWORKS, supra note 12, at 117–19.
36. See, e.g., A. Dan Tarlock, Local Government Protection of Biodiversity: What is
Its Niche?, 60 U. CHI. L. REV. 555 (1993).
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norms generates a transformation in the “magnetic field” in which all
localities are situated, thus also influencing localities that have not
been traditionally globalized. Even localities with hardly any foreign
investment, foreign workers, and low penetration of global images or
ideas, feel the push and pull of globalization. People leave these
localities to move to global cities where they can find work and
opportunities.37 Localities find themselves in a new competitive
environment due to the enrichment of the few global cities and their
de facto relative empowerment vis-à-vis the state;38 and they
generally find themselves in a constant struggle with other localities
over foreign direct investments and other foreign and global
economic activity.39 If some localities want to resist globalization
and development, they have to take special measures,40 and either
way they, too, become objects of global interest in the sense that
international norms and institutions begin to monitor, supervise, and
attempt to regulate them.41
C.
A New Legal Order: Trinity Instead of Two Pairs
Our discussion has thus led us to the conclusion that while
political and legal theory previously conceptualized two dominant
legal pairs—World-State (international law and policy) and StateLocalities (national-local government law and policy)—and the two
pairs stood detached from one another and had no significant legal
bearing on each other, the new world order and globalization has
enmeshed the two pairs to create a novel trinity: World-StateLocality. In the previous legal constellation, the world, through its
institutions, could form relationships with, pose demands to, and be
addressed by states alone; but in the new global legal order the world
is increasingly developing the same legal relationship with localities,
independent of states. But the reason I refer to it as a novel trinity
37. Scholars have demonstrated that suburbanization is also linked with the emergence
of global cities. See Goldsmith, supra note 30, at 46–48.
38. A striking example of such an impact can be found in the cases of cities that have
been chosen to host the Olympic Games. Such cities usually undergo quick and radical
development that has an impact on the whole region, including adjacent localities. See
Solomon J. Greene, Staged Cities: Mega-Events, Slum Clearance, and Global Capital, 6
YALE HUM. RTS. & DEV. L.J. 161 (2003).
39. See, e.g., Jacqueline J. Ferber, The U.S. Foreign Direct Investment Policy: A Quest
for Uniformity, 76 MARQ. L. REV. 805 (1993).
40. SAVITCH & KANTOR, supra note 12, at 20–23.
41. Once an international legal regime that sees localities as legal subjects evolves, it
knows no difference between so-called “global cities” and non-global cities. All types of
localities, as we shall see, become objects for democratic reform, accountability, efficient
management, and decentralization.
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rather than the emergence of a third pair (world-localities), is that
each of the actors develops legal relations with the two remaining
ones, while changing its previous relationships.
Thus, local
governments can now use international law in their struggle against
their states and other localities, and the world faces two distinct
entities—the state and localities—and it no longer addresses them as
if they were the same legal creature.
This should come as no surprise, since other actors have been
entering the global sphere, especially civil society parties such as
NGOs and corporations. Local government, one could possibly say,
is just another entity in the ever-expanding list of new partners that
states and IOs are compiling as part of their effort to democratize
themselves and open themselves up to popular participation. But
equating localities with other civil society agents seems somewhat
odd, since they are still not entirely private. Local governments are
both public and political in the sense that in many countries across
the world they are democratically elected and still perform many
activities commonly understood to be public in their essence.42
Furthermore, localities are also territorial, much like states, and
unlike other civil society actors. Therefore, the emergence of
localities on the global stage marks a return to the age of independent
and sovereign cities, albeit in a radically different global
configuration. Despite the de facto formidable role localities have
been playing in the new global order, academic writing in the legal
international sphere has paid scant attention to them, while other nonstate actors like provinces, cantons, states, and public and private
corporations are identified as the markers of the end of the era of
classical sovereignty.
Yet, as I have stressed over and again, the current “return” of
cities should not be mistaken for going back in time to the European
city-states of the Middle Ages or to the ancient Greek city-states.
This re-emergence of cities is happening in a particular historical
configuration in which states still possess huge legal, economic,
social, and political power over localities. And the world, previously
a highly abstract and vague concept, is becoming more tangible,
42. Another interesting development in this respect is the appearance in many states of
“private” localities: localities that are privately owned. Such private cities raise many
interesting questions with respect to their status as either “private” or “public.” For a
discussion of these new semi-urban creatures, see generally JOEL GARREAU, EDGE CITY:
LIFE ON THE NEW FRONTIER (1991); Robert C. Ellickson, Cities and Homeowners
Associations, 130 U. PA. L. REV. 1519 (1982); Lee Anne Fennell, Contracting Communities,
2004 U. ILL. L. REV. 829 (2004). It is fair to say that the logic of the private locality and of
the homeowners association has spread worldwide and thus the international legal system of
empowered localities is actually a system of privatized localities that looks more like any
other civil society entity and not the public city.
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supported by a community of internationalized human subjects,
international norms, and institutions that claim to represent it.
Hence, local governments now face each other, mediated by the
world and the norms and institutions that it comprises.
III.
LOCALITIES’ LEGAL STATUS IN INTERNATIONAL LAW
In this Part, I describe the complicated and unexamined legal
status of local governments in international law. I analyze the
locality as a legal concept in international law. I then move on to
surveying the positive legal status of localities in international law,
and I try to locate the theoretical foundations of the ambivalent
treatment of localities in international law.
A.
The Locality as an International Legal Concept
At this point, it is proper to ask: What is a locality? It is a
political, spatial, social, and economic phenomenon. But it is, most
importantly, a legal creation. And as legal creatures, localities should
be distinguished from other sub-national territorial entities such as
cantons and provinces. The uniqueness of localities is based on the
fact that while international law has dealt quite extensively with subnational entities that make up federal states, there has been virtually
no discussion, until recently, regarding localities. And while
localities, much like other sub-national entities, are required to
comply with their states’ international obligations, they are prevented
from becoming a party to an international treaty. Thus, an important
question that this section seeks to answer is, what is the source of the
differential treatment of international law of these various territorial
units? Following this investigation, this Article also identifies
important changes in this respect.
But the local governments that this Article deals with should
also be distinguished from another type of locality, called city-states
or micro-states, that are internationally recognized states, and no
longer maintain the dual nature of regular local governments.43 Such
city-states have entirely collapsed into the state, and they do not
suffer from the duality that characterizes most cities in the world.
While most cities are both part of the state, but also autonomous and
43. Such micro-states include Singapore, Andorra, Monaco, Lichtenstein, the Vatican
City, and more. For a detailed analysis of the status and history of micro-states in
international law, see JORRI DUURSMA, FRAGMENTATION AND THE INTERNATIONAL
RELATIONS OF MICRO-STATES: SELF-DETERMINATION AND STATEHOOD (1996).
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distinct from it,44 micro-states (or city-states) are merely states—
identical to the state they comprise. And while most countries in the
world have some form of internal political division scheme in which
the state delegates powers and duties to sub-national territorial units,
micro-states have almost none of that.45
Indeed, the internal political division of countries across the
globe could be described as a continuum, stretching between two
paradigmatic extremes: At one end lies the paradigm of the city-state
or the unitary centralized state, where the whole territory is one citystate with complete identification between the locality and the state
(or, where, despite the existence of spatial entities that might be
called “cities”—and they might indeed be cities as an economic and
social matter—these units have no legal powers and no autonomy);46
and on the other end is the paradigm of the decentralized state, where
the central state is minimal and various territorial sub-national units
are vested with meaningful legal powers.47 Most countries are
located somewhere along this spectrum rather than at one of its ends,
and local government law is the main instrument that defines how
city-state-like or unitary-state-like the country is.48
B.
Local Governments’ Lack of Legal Personality in
International Law
Regardless of where the country lies on the spectrum I just
described, local governments have no legal personality in formal
international law. Classic documents of international law—the socalled uncontested sources of international law49—do not recognize
localities as possessing legal person. No international treaty or
convention of the UN, and almost no decision of the International
44. See infra Part III.C.
45. Such city-states include Singapore, Hong Kong, and Dubai.
46. France is often depicted as an example of the centralized unitary state where cities
are mere administrative subdivisions. In fact, however, localities in France are delegated
with authority to provide various services and perform numerous activities, and they have
significant discretion over these matters.
47. Scandinavian states are often used to exemplify this form of decentralized relations
between localities and the state.
48. In fact, as a legal matter these two paradigms are identical: Both the city-state as
well as the total-unitary state conceive of themselves, as a legal matter, as lacking any
internal territorial hierarchy, since there is only a single legal territorial unit. However, as a
spatial and economic matter, these two ideal types are obviously distinct and they represent
the fact that even where cities do not possess ample legal authorities, their spatial existence
can be rather meaningful.
49. I refer here to international treaties and conventions of the U.N., treaties between
states, and conventions. See, e.g., Statute of the International Court of Justice art. 38, June
26, 1945, 59 Stat. 1055, T.S. No. 993.
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Court of Justice (ICJ) mentions the existence of localities or
recognizes them as legal entities under international law.
Furthermore, only states can be members of the UN.50 And, strange
as it may sound, the seemingly clear legal principle that denies
localities’ legal person in international law, is hardly ever mentioned
in international covenants, treaties, textbooks, or other documents.
Without digressing too much into the profound debate
regarding the functions and rationales of international law, there are
several reasons for this tradition that lies at the heart of international
law, some theoretical, others more pragmatic. The first, and perhaps
the most obvious one is the traditional linkage between international
law and the principle of sovereignty. The founding principle of
international law is that states are sovereign within their territory and
that international law is a self-imposed legal system to which states
have to consent. Hence, only states should be the full subjects of
international law,51 and they should be given the liberty to internally
organize themselves, and be treated by external powers as unitary.
Classic international law was not supposed to curb or diminish the
unrestrained sovereignty of states within their territory, to regulate
their internal affairs, or to contravene in any way the integrity of
states. According to this view, the absence of localities from
international law is no more unique than the absence of individuals,
groups, associations, or corporations.52
Second, the establishment of an efficient international regime
depends on a limited and finite number of legally recognized
international persons. One commentator explained most lucidly:
“To admit [to the UN] all the bits and pieces of former empires as
independent states would not only debase the coinage of membership
but would surely be more than U.N. structure could bear.”53 And
even though this fear was mostly invoked by the demands of various
regions and states within former federal and imperial regimes and not
by demands of localities to become sovereign, the same logic applies
even more strongly as regards local governments, and international
law’s hostility towards granting them legal person was probably a
50. U.N. Charter art. 4.
51. OPPENHEIM, supra note 17, at 19 (“Since the Law of Nations is based on the
common consent of individual States, States are the principal subjects of International Law
. . . . As a rule, the subjects of the rights and duties arising from the Law of Nations are
States solely and exclusively.”). Later, Oppenheim qualifies this rule and admits that
exceptions exist for belligerents, the Holy See (Vatican), and various individuals, etc. Id. at
20–22; see also SHAW, supra note 5, at 175–77.
52. Clearly, there are some good reasons to distinguish cities from other state actors.
See infra Part V.
53. DAVID W. WAINHOUSE, REMNANTS OF EMPIRE: THE UNITED NATIONS AND THE END
OF COLONIALISM 134 (1964).
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result of such fear. Indeed, under this view, granting some localities
full legal person would not only destabilize the UN structure and
unbearably complicate international relations, but it would also
encourage many localities to secede from their states in an attempt to
acquire full international legal person.
Third, and not unrelated to the previous point, is post-WWII
hesitation to grant cities international status following what are seen
to be failed experiments with free cities such as Krakow, Shanghai,
Danzig, and Fiume, and internationalized cities/territories such as
Tangiers and Jerusalem.54 Some of these experiments were targeted
at solving problems of ethnic and national minorities that, following
the emergence of the homogeneous nation-states, found themselves
oppressed and in need of international protection. Cities where such
minorities existed were thus freed from the grip of the state and put
under international supervision;55 others were aimed at mediating
between countries competing over resources and territories.
Fourth, local governments are simply seen as integral parts of
their states and it would therefore seem odd to even mention them as
separate entities. Much like it would be redundant to mention
explicitly the existence of the legislature, the executive, or any other
state organ—let alone discuss the absurd idea of granting these state
actors international legal personality—there is no need to mention
localities, or debate their candidacy for an independent international
personality. Indeed, localities can actually be understood precisely as
those sub-national divisions not recognized in any way by
54. Each of these cases presents a different legal and political reality, of course. Méir
Ydit provides a thorough research into the history of these various experiments, as does
Nathaniel Berman (the latter focuses on interwar cases, mainly the free city of Danzig and
the territories of the Saar and Upper Silesia). See MÉIR YDIT, INTERNATIONALISED
TERRITORIES: FROM THE “FREE CITY OF CRACOW” TO THE “FREE CITY OF BERLIN” (1961);
Nathaniel Berman, “But the Alternative is Despair”: European Nationalism and the
Modernist Renewal of International Law, 106 HARV. L. REV. 1792, 1820, 1875–78, 1886–93
(1993) (analyzing the case of Danzig—together with the case of the Saar region and Upper
Silesia—as a demonstration of international law’s ambivalence towards nationality and
statehood).
55. The most fascinating example is the Free City of Danzig. Danzig was part of the
territories that were transferred from German to Polish sovereignty, thus turning previously
German citizens into Polish ones, while securing their autonomy vis-à-vis the Polish
government through the status of Danzig as a Free City. See Treaty of Versailles arts. 102–
04, June 28, 1919, 225 Consol. T.S. 188. The status of Danzig as a city, and not merely a
semi-state or a semi-sovereign, was never taken seriously by scholars. I argue that despite
the obvious fact that Danzig was indeed a unique creature, an experiment in sovereignty, it
was nonetheless a city, and the inability of international law to address this fact is a mark of
its ambivalence towards cities as unique creatures, as meaningful mediators between states
and individuals (or groups). And although Danzig was not a city in the contemporary sense
of the word but rather a sui generis, free-standing city, the lesson that can be drawn from it is
remarkable: If cities are to assume, once again, legal personhood in international law, they
could very possibly resemble the Free City of Danzig.
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international law, standing in contrast to sub-national units such as
states and cantons in federal systems, which international law
accommodates in various ways.56
It is therefore clear that the international legal order is based
not only on the abstract understanding of the relations between
sovereign states but also on a normative conception of a desirable
hierarchy between various sub-national political divisions. In this
regard, localities should not acquire any international legal status
regardless of the exact division of powers between the state and its
localities, even in cases where localities enjoy a high degree of
independence and autonomy vis-à-vis their state. Not only is
international law not currently built to fully incorporate a separate
local entity, but such incorporation would also seem incompatible
with the current understanding of the role of localities in the state.
As we shall see, this understanding is changing. I now turn to
analyze the way that the common conception of local governments as
state organs has influenced their perception and treatment by classic
international law. In order to demonstrate this point, I first give an
overview of the basic tension regarding localities that exists in liberal
thought. I then move on to describe the historical conceptualization
of localities in international law.
C.
Local Governments: Between Democracy and Bureaucracy
The tension between the bureaucratic and the democratic
conception of localities marks not only the field of local government
law, but the nature of the city as a legal concept.57 In many domestic
jurisdictions, the attitude towards localities reflects the same
ambivalence:
On the one hand, the bureaucratic conception
56. Many works have been written on this topic. For a comprehensive analysis, see
MODELS OF AUTONOMY (Yoram Dinstein ed., 1981); Yoram Dinstein, Multinational,
Federal and Confederal Arrangements, 17 T.A.U. L. REV. 231 (1992) (Isr.).
57. For a detailed description of the ambivalence of the main currents in liberal
political thought towards localities, see Gerald E. Frug, The City as a Legal Concept, 93
HARV. L. REV. 1057, 1062–80 (1980) (Frug’s seminal work); GERALD E. FRUG, CITY
MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS (1999). What characterizes
various theoretical and policy-oriented positions as regards cities is their location on the
spectrum between these two sides of the dichotomy between democracy and bureaucracy,
without the ability or possibility to “give up” on either of its sides. See, e.g., Richard
Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107
HARV. L. REV. 1841 (1994); David J. Barron, A Localist Critique of the New Federalism, 51
DUKE L.J. 377 (2001); David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255
(2003); Richard Briffault, Our Localism: Part I—The Structure of Local Government Law,
90 COLUM. L. REV. 1 (1990); Richard Briffault, Our Localism: Part II—Localism and Legal
Theory, 90 COLUM. L. REV. 346 (1990); Roderick M. Hills, Jr., Romancing the Town: Why
We (Still) Need a Democratic Defense of City Power, 113 HARV. L. REV. 2009 (2000).
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envisions localities as an integral part of the state, an administrative
convenience, or a local branch of the central national government;58
and on the other hand, the democratic conception understands local
governments to be independent and autonomous corporations,
reflecting the will of a local community, a semi-sovereign democratic
entity distinct from and independent of the state. This dichotomy is
why localities are often seen as too powerful and too powerless at the
same time. The ambivalence is reflected in the fact that many
domestic legal doctrines treat localities as internal divisions of the
central state apparatus, but also set locally elected officials to run
local government and grant them autonomy and freedom from central
intervention.
Given the current political and ideological
commitments of liberal democracies, this tension cannot be entirely
suppressed or overcome since each of these conceptions promises to
achieve some of the most basic tenets of modern political liberalism.
This dual nature marks local governments throughout the world, and
renders their existence unique, as compared to other state organs and
especially other sub-national territorial entities.
The most dominant aspect of the bureaucratic model is its
egalitarianism. If localities were mere subdivisions of the state,
providing services according to central standards, applying state
policies without (or at least with little) discretion, and being fully
funded by the central government through the central tax-and-spend
system, then equality throughout the national territory would be most
effectively reached.59 Of crucial importance is also the Madisonian
fear of local factions, that the fragmentation of the federation into
powerful localities might bring about the emergence of extreme subnational units that could jeopardize the rights of minorities within
them. Only extending the political sphere and involving the whole
citizenry in each important decision—that is, weakening the local
units—will ensure the protection of minorities from contingent
majorities.60 The bureaucratic model also fits with nationalist ideas
about forming a cohesive citizenry, and is supposed to address the
fear of the divided nation and of powerful sub-national territorial
entities that would threaten the central sovereign.
The democratic conception, however, stems from values that
are as basic to liberalism as those that the bureaucratic advances.
58. This was the famous holding of an early twentieth-century decision of the United
States Supreme Court. See Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907).
59. Indeed, the French revolutionaries were strictly opposed to the idea of federalism,
and cities that attempted to resist the egalitarian centralist vision, such as rebellious Lyon,
were severely punished.
60. See THE FEDERALIST NO. 10, at 46–52 (Alexander Hamilton, James Madison, John
Jay) (1787).
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First and foremost is the idea that local self-government is the best
“schoolhouse for democracy,” where citizens can experience self-rule
and can become involved in, and informed about politics and the
democratic process.61
No less important is the notion that
autonomous local governments, chosen freely by their residents
enable the latter to realize maximum liberty and freedom from state
intervention with their lives.62 Such autonomous localities can also
best reflect the heterogeneity and plurality of the people. Selfgoverning political sub-national units, according to this vision, can
allow various groups—religious, ethnic, racial, cultural, and
linguistic—to pursue their own goals and advance their particular
values and interests, while still enabling them to be a part of a larger
polity. In addition, powerful and independent local governments
engender better provision of public services to their residents.63
Suspicion of the all-knowing central state has also contributed
significantly to the attractiveness of the democratic conception.
Public choice theory has undermined the belief in the ability of state
organs to articulate the public’s interest, and has argued that smaller
political units can often better reveal and advance the interests of
their residents.64
The way a national legal system deals with this tension is
reflected in where exactly it positions itself on the wide spectrum that
runs between treating localities as purely bureaucratic state agents
and treating them as purely democratic, semi-autonomous entities.
The political decision regarding the exact role of localities vis-à-vis
the state’s role is not a single decision; rather, it is a constant debate
that legislatures, administrative agencies and courts are engaged in,
61. This position was articulated by Alexis De Tocqueville and John Stuart Mill. See
ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 76 (F. Brown ed., 1863); JOHN STUART
MILL, ON LIBERTY AND OTHER ESSAYS 121–22 (John Grey ed., 1991).
62. See generally ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (1971) (stressing the
libertarian potential of a political regime that is based on a weak central state and strong
voluntary localities).
63. This is the core of the model that Charles Tiebout offered half a century ago in his
famous article. According to the model that Tiebout developed, localities are best
understood as complicated commodities that “consumer-buyers” purchase according to their
preferences by moving from one locality to the other. This model suggests that public
services are best provided by free-chosen territorial entities, since they reveal optimally the
preferences of the people, and avoid the tragedy of public goods. See Charles Tiebout, A
Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956).
64. This important point was made by various public choice theorists. See, e.g., James
M. Buchanan, Rent-Seeking Under External Diseconomies, in TOWARD A THEORY OF A
RENT-SEEKING SOCIETY 183 (James M. Buchanan et al. eds., 1980); MANCUR OLSON, THE
LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1971); ROBERT
COOTER, THE STRATEGIC CONSTITUTION (2000). For an elaborate exposition of public choice
attack on centralism as well as critique on some of their pro-local bias, see William W.
Bratton & Joseph A. McCahery, The New Economics of Jurisdictional Competition:
Devolutionary Federalism in a Second-Best World, 86 GEO. L.J. 201 (1997).
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and almost every decision that involves the division of powers
between the state and localities reflects it: in local taxing powers;
local planning zoning; local business licensing; local marriage
licensing; local education boards, and so on.65
However, as I have already mentioned, in classic international
law, only states appear as full legal persons, bearers of rights and
duties. Local governments are treated as mere subdivision of states,
and have neither legal standing nor independent presence in formal
international institutions. In this respect, international law seems to
have chosen a clear position within the debate regarding the function
of cities. As long as there are states, and as long as states are the
basic “building blocks” of the international legal order, recognizing
localities as legal persons threatens the sovereignty and supremacy of
states and cannot happen without radically reshaping the current
global order. Indeed, the special status of localities in international
law is derived not only from the general liberal hostility of states
towards local governments, but also from particular concerns of
international law: the fear of the disintegration of the world into premodern city-states, and the fear of modern nation-states of the
growing encroachment of the global upon their fragile sovereignty.
But while international law has dealt for a long time—both in
doctrine as well as in academic writing—with questions concerning
federalism and the international status of cantons, provinces, states
(and other components of federal states), it has ignored the legal
status of localities.
Yet, an undercurrent of the democratic conception of cities—
of sovereign cities that are no mere administrative subdivision of
their states and that possess authority over a wide range of issues—is
perennial in international law. And much like the Free Cities of
Krakow, Danzig, or the independent League of Hanseatic cities,66
local governments throughout the world are appearing to gain
independent legal status in international law.
To sum up: Although localities existed throughout human
history as spatial, political, social, and economic phenomena, there is
no coherent doctrine that explains their changing legal status in
international law. Contrary to common belief, local governments
have not always been entirely devoid of any legal status in
international law. And while they were indeed largely ignored by
international legal documents and scholars, localities sometimes
managed to obtain varying degrees of legal recognition on the
65. See Frug, supra note 57, at 1062–80.
66. See GEOFFREY PARKER, THE SOVEREIGN CITY: THE CITY-STATE THROUGH HISTORY
194–212 (2004).
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international plane.67
This complicated attitude towards local
governments is the result of both basic tenets of international law,
and also basic tenets of most modern nation-states. The combination
of international law’s strong bias in favor of states as the entities
deserving a full legal personality, and of modern nation-states’ desire
to maintain their monopoly in areas pertaining to security and foreign
relations has resulted in a legal scheme that has deprived cities of any
chance to operate as actors on the international plane.
IV.
THE EMERGENCE OF INTERNATIONAL/TRANSNATIONAL
NORMS AND INSTITUTIONS THAT TRANSFORM LOCALITIES’
LEGAL STATUS
But if the attitude of international law towards local
governments is so clearly biased and dismissive, how is it that
localities have become, de facto, such important actors in world
politics, culture, and economics? What are the legal changes that
accompanied the emergence of local governments as world actors?
Indeed, despite its explicit refusal to directly acknowledge
localities as legal persons, during the past fifty years (and especially
during the past three decades), international law began
accommodating localities in various manners that are in clear
opposition to the doctrinal lack of legal personality. International
law burdened localities with duties. Localities became objects of
global, international, and transnational regulation.
Local
governments have assumed the role of enforces of international
norms and standards, and they gained influence as political entities in
the world political stage. These quite distinct characterizations of
localities in the emerging global order add up to a picture in which
localities are the active agents of globalization or internationalization.
And while the social sciences discourse about global/world
cities has seen cities (and only a rather short list of cities) as agents of
economic, technological, or cultural change, this Article highlights an
un-theorized, yet crucial role that many localities—and not only a
select few global cities—have had in bringing about this change.
This role of localities is a result of their unique position as active
agents with legally defined powers, mediating between the world and
67. Indeed, despite the general oversight of localities by international legal documents
and scholars, some cities managed to become legally recognized states in the international
sphere. At other times, international law was willing to grant various cities a unique
international legal status—albeit a haphazard one—as entities that were semi-sovereign and
semi-autonomous. However, both micro-states and internationalized cities are exceptions to
the rule.
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the state, between individuals and their state, and between
communities and the world. Localities’ functioning as normative
mediators in the new world is an outcome of a combination between
their domestic legal powers and the emerging global schemes of
decentralizations, on which I shall elaborate below.
Thus, localities have become, and will become more so, nodal
points for radically distinct governance projects that have as their
common goal to transform cities from mere subdivisions of sovereign
states into legally empowered entities, able to advance goals and
values that are different from their states’. In this process, localities
become partners in the evolving new global order in which non-state
actors are increasingly more dominant. This change is brought about
by four modalities, through which localities become prominent actors
on the world stage. First, localities become bearers of international
rights, duties, and powers. Second, localities become important
objects of international and transnational regulation. Third, localities
increasingly enforce international norms and standards. Fourth,
localities form global networks. In the following section, I discuss
these modalities in detail.
A.
Localities’ Assumption of International/Transnational Duties
and Authorities
Though still short of becoming full international legal entities,
localities are gradually acquiring a wide range of international duties
and authority. As state agents, localities are obligated to comply with
duties states have assumed as signatories to international charters and
covenants.68 Indeed, states are often required to take necessary
measures to ensure such local compliance with their international
obligations. In other cases, localities have been given domestic
authority based either on their state’s international obligations or on
customary international law. Hence, while not yet conferring upon
localities the status of full international legal person, many
international documents affect the duties of and authorities of
localities. These duties cannot always be translated into international
disputes in international tribunals, but they can actually impact the
68. It is still impossible to sue localities in the International Court of Justice (ICJ) for
such violations since only states have standing in the ICJ. However, the ability of
individuals or other private parties domestically to sue localities that fail to comply with
international obligations of their states is a matter of domestic law. For instance, localities
might be compelled to provide various services to residents as a result of their states’
obligations under international instruments such as the Convention on the Rights of the
Child or the International Covenant on Economic, Social and Cultural Rights (ICESCR).
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rights of individuals and other legal entities in various national
settings. This is happening not because there is anything new about
localities complying with their states’ international responsibilities,
but due to changes in the legal context in which localities operate.
First, the growing number of international agreements and the fast
evolution of customary international law mean that localities now
exist in a legal surrounding in which state’s monopoly over the
determination of localities’ rights, duties, and powers is broken and
international rules now also apply. Second, many legal systems are
decentralizing, particularly in economic terms,69 making localities
economically responsible for international obligations taken by their
states, thus creating growing economic tensions between localities
and states.
1.
International Charters and Covenants and Customary
International Law
Most official international treaties and covenants do not
recognize the separate legal existence of localities. Only states are
party to them, and only states can be sued in international tribunals if
they are violated. Though localities are not full subjects of
international law, they must comply with obligations and duties that
the party states take on when signing such documents. And even
though local governments’ obligations stem from those of the state,
they are those who often carry the burden of such duties and thus
become de facto parties to these covenants.
This fact has serious implications as far as localities are
concerned, though they are not subjected to the ICJ’s jurisdiction.
Due to the dual nature of local governments, according to which they
are state organs on the one hand and autonomous (or at least
independent) legal entities on the other hand,70 they can be sued in
domestic courts for violating obligations that the state took upon
itself in international covenants.71
This structure has some
problematic aspects that stem from the fact that in many jurisdictions
states have delegated many of their authorities—mainly the provision
69. THE WORLD BANK, CITIES IN TRANSITION: WORLD BANK URBAN AND LOCAL
GOVERNMENT STRATEGY 1, 34 (2000) [hereinafter CITIES IN TRANSITION].
70. This is the case in many jurisdictions across the world.
71. A state is obligated to adapt its laws so as to conform with the stipulations of the
international treaties it is party to, according to the Vienna Convention on the Law of
Treaties (1969). However, as long as the state did not ratify the treaty, it is not bound by it,
and as long as it has not been incorporated into the domestic legal system by a legislative
act, it is usually the case that the international treaty shall have no power in the domestic
legal system.
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of various public services—to localities.72 These decentralizing
measures, in themselves encouraged by various international
entities,73 were often accompanied by a transformation of the funding
schemes of localities from central funding to self funding. Thus,
localities are expected to fund and provide services that the state took
upon itself, but has devolved to localities.
And indeed, local governments have been sued by private
individuals and by other domestic legal entities in domestic courts,
based on international duties and obligations of their states as a result
of the localities’ status as state agents. And the more states across the
globe are delegating various authorities and duties to localities, the
more pressure is mounting on local governments to abide by the
standards set out in such international documents.
A recent Israeli case demonstrates this point. In Adalah v.
Tel-Aviv, two civil rights groups challenged the common practice of
Israeli localities to post names on street signs in Hebrew and English
only, rather than in Arabic as well.74 There was no doubt that
domestic law mandated localities to place names on street signs
within their jurisdiction.75 The plaintiffs argued that according to the
United Nations International Covenant on Civil and Political Rights
(ICCPR)—ratified by the State of Israel in 1991—the state had to
respect and protect the language of minorities, and since localities
were state organs, they were bound by this duty. The reason
localities fought the petition was that it would cost them a lot of
money, money they would not receive from the state due to their
incorporation as independent public corporations vested with
exclusive authority over street signs. The Court rejected the claim
that the Covenant established a positive duty upon the state and the
city, yet accepted the petition nonetheless, based on the grounds that
failing to use Arabic amounted to discrimination. However, had the
Court ordered localities to use Arabic because the ICCPR included a
positive duty to use minority language on street signs, it would mean
that localities would fund with local taxes duties that the state
assumed in the first place.
72. For a survey of such measures in Israel, see Yishai Blank, Local Frontiers: Local
Government Law and Its Impact on Space and Society in Israel 46–77 (unpublished S.J.D.
Dissertation, Harvard Law School, 2002) (on file with author).
73. Indeed, this process itself has been closely linked with the rise in decentralization
ideology and with global institutions such as the World Bank that has conditioned its support
for various countries (especially in the developed world) in such structural changes and
measures. See infra Part IV.B.2.
74. HCJ 4112/99 Adalah v. Municipality of Tel-Aviv [2002] IsrSC 46(5) 393. The
petition was brought against four localities only (Tel-Aviv, Ramleh, Lydah, and Upper
Nazareth), chosen for the reason they had an Arab minority in them.
75. See Municipalities Ordinance, art. 235(4), 249 (Isr.).
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In another recent Israeli case, some of the tensions arising
from the duties placed upon local governments—also according to
UN covenants—were adjudicated.76 As a part of the structural shift
from state funding of various public services to local funding,77 the
government has cut the budget for public libraries operated by local
governments throughout the country, and refused to continue to fund
them in equal shares with localities. The Union of Local Authorities
petitioned the Israeli Supreme Court and argued that the state is
required to continue funding public libraries also based on its
obligations according to the International Convention on Economic,
Social and Cultural Rights (ICESCR).78 While accepting the general
claim regarding the domestic applicability of international norms
(and, apparently, their specific potential applicability to state-local
government relationship), the Court rejected the petition in light of
various amendments that were adopted into the specifically domestic
law. Thus, regardless of the outcome of this dispute, it is evident that
international norms have the potential to alter the domestic duties and
authority of localities, as well as those of states towards localities.
The Canadian case of the Town of Hudson exemplifies
another way in which international covenants can become not only a
source of duties, but also an authorizing source for localities.79 In
Hudson, licensed lawn care companies sought a declaration of
invalidity of a by-law passed by the city of Hudson, prohibiting the
use of pesticides within its territory, except for specified purposes
and locations. Among other arguments, the plaintiffs maintained that
the city was not authorized to enact the said by-laws. Dismissing the
petition, the Court interpreted the authorizing act—the Canadian
Cities and Towns Act that provided for regulation by municipalities
“to protect the health and well-being of resident”—as authorizing the
city to enact a by-law that protects the environment.80 The Canadian
Supreme Court ruled that giving the town the right to enact the
debated by-law was “consistent with principles of international law
and policy,”81 and was thus a plausible reading of the authorizing
76. HCJ 2376/01 Union of Local Authorities v. Minister of Science, Culture and Sport
IsrSC 56(6) 803.
77. This transformation occurred gradually since the 1980s. During the past two
decades, localities’ funding shifted from being mostly state-based to being primarily selfbased. The state’s participation in funding the activities of localities dramatically decreased
while the share of localities themselves in funding those activities rose significantly. For a
detailed description of this crucial evolution, see Blank, supra note 72, at 46–77.
78. The Court also referred to the Public Libraries Manifesto issued by UNESCO in
1994. See HCJ 2376/01 Union of Local Authorities v. Minister of Science, Culture and
Sport IsrSC 56(6) 807.
79. See Canada Ltee v. Hudson (Ville), [2001] S.C.R. 241.
80. The Cities and Towns Act, R.S.Q., ch. C-19 (1977) (Can.).
81. Hudson, S.C.R. 241 at 41.
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statute, among other reasons. The relevance of international law and
policy, explained the Court, is derived from the interpretative
principle that was set in Baker v. Canada, that “the values reflected
in international human rights law may help inform the contextual
approach to statutory interpretation and judicial review.”82 The
Court further found that environmental protection (and especially the
“precautionary principle”83) was a well-accepted international law
principle, and the town’s authorization should be construed in a way
that will allow it to promote this international principle.84
These cases demonstrate the ways in which international
duties, standards, and norms are increasingly imposed upon
localities. On the one hand, because localities are state agents and as
such must comply with their state’s expanding international
obligations, they are becoming even more dependent on their states’
behavior. On the other hand, international law empowers localities
since it creates direct authorization that might conflict with the state’s
policies and interests. Coupled with fiscal decentralization schemes,
these developments cause different types of conflicts among
localities and between states and local governments.
2.
Regional and Other Non-UN International and Transnational
Treaties
International law creates a distinction between localities and
other sub-national territorial entities such as provinces and states as
regards transnational treaties and agreements. While there is an
enduring debate about the ability of the latter group to engage in
various international treaties,85 there is implicit agreement among
scholars and international policy makers that local governments are
prevented from doing so. And while there is a considerable volume
of writers who claim that sub-national units in federal regimes can
82. Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.R. 817,
861. A similar interpretive principle also prevails in Israel. See CA 131/67 Kamiar v. State
of Israel IsrSC 22(2) 85; CA 3112/94 Abu-Hassan v. State of Israel [1999] IsrSC 53(1) 422.
83. This principle can be found in both treaty law as well as in customary international
law. Hudson, S.C.R. 241 at 42.
84. Id. at 42–44.
85. There is no doubt that such sub-national territorial units can enter regular
agreements with other entities, and the only question is whether they can be a party to an
international treaty. See generally LUIGI DI MARZO, COMPONENT UNITS OF FEDERAL STATES
AND INTERNATIONAL AGREEMENTS (1980). Such debates are taking place at the general
international level but also in the different national legal systems. Some constitutions (such
as the American one) specifically prohibit their sub-federal components to engage in treaties
with other states, while other constitutions condone such activities. For a discussion of these
issues, see Dinstein, supra note 56, at 270–77.
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engage in internationally recognizable and enforceable treaties,86
there is no discussion or practice of local governments doing so.
Once such transnational agreements are signed by authorized parties,
localities must conform to these treaties and agreements as state
agents, as was discussed in the previous section.
The past three decades have witnessed a huge surge in
multilateral, regional, and transnational agreements and treaties.87
Two dominant examples are the EU88 and NAFTA,89 but in addition
to those are hundreds of other, more specific agreements between
states. Such treaties, when created in accordance with international
law and in compliance with domestic laws that regulate the ability of
the state and its organs to sign such agreements, are official sources
of international law and bind the parties to them, including the local
governments that are state agents for that particular matter. Indeed,
the questions arising from considering local governments to be
possible parties to such international treaties are formidable. And as
much as they are difficult to answer with respect to sub-national units
in federal regimes, they are even harder to resolve when localities are
concerned.90 In this Article, I do not attempt to deal with these
complex questions, but rather I attempt to shed light on the fact that
under the new world order of international treaties local governments
are being exposed and submitted to international norms, obligations,
and tribunals.91
One dominant area in which localities as bearers of duties and
as objects of regulation have been dramatically influenced by nonUN international treaties is that of environmental protection and
86. The common understanding is that the capacity of a canton to be a party to
international treaties is dependent on the domestic constitution. Though such a clear
statement does not appear in the Vienna Convention on the Law of Treaties (1969), most
commentators believe it to be the rule. See Dinstein, supra note 56, at 273–75.
87. See, e.g., Noemi Gal-Or, Private Party Direct Access: A Comparison of the
NAFTA and the EU disciplines, 21 B.C. INT’L & COMP. L. REV. 1 (1998).
88. The EU is a complicated web of institutions and treaties. The founding documents
are the following: Treaty Establishing the European Coal and Steel Community, Apr. 18,
1951, 261 U.N.T.S. 140; Treaty Establishing the European Atomic Energy Community,
Mar. 25, 1957, 298 U.N.T.S. 167; Treaty Establishing the European Economic Community,
Mar. 25, 1957, 298 U.N.T.S. 11; Treaty Establishing a Single Council and a Single
Commission of the European Communities, Apr. 8, 1965, 4 I.L.M. 776 (1965).
89. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M.
289 (1993).
90. Such questions include, for example, whether individuals have legal standing to
bring claims in front of courts; which courts would be those to adjudicate disputes arising
from such treaties; problems of separation of powers and delegation of authority (legislative
and other) to localities, and more.
91. Anupam Chander had recently dealt with the challenge this structure poses to
conceptions of democracy and accountability, since these tribunals (such as the World Trade
Organization’s) are often appointed, rather than elected, and are not attached to any single
democratically elected government. See generally Chander, supra note 11.
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natural resources management. Eyal Benvenisti describes the
emergence of positive international law regarding transboundary
resources.92 According to his findings, where various natural
resources such as rivers and water reservoirs required transboundary
cooperation, there emerged treatises and webs of institutions that
facilitated and sometimes even forced cooperation, not only between
states, but also among local governments. Benvenisti shows how the
classic international model of unitary and homogeneous states fails to
reflect the reality of the heterogeneity of states, and thus does not
address the problems that this heterogeneity creates: difficulties with
cooperation that cause inefficiency, a democratic deficit, and other
disadvantages.93
Under the umbrella of various treaties and
agreements concerning the control of such resources, localities were
forced to cooperate with one another; and they were also authorized
to engage in various voluntary agreements to better use and maintain
these resources.
During the past decade and a half, various environmental
agreements that target localities have been signed. Indeed, the more
that the understanding that localities are major actors without whose
cooperation international environmental protocols and treaties cannot
be implemented, the more explicit cities’ obligations become in such
documents. It is with precisely this concern in mind that Agenda 21,
the most comprehensive of UN environmental documents,
recommends the development and strengthening of mechanisms,
including those “at the lowest appropriate level,” in order to ensure
the protection of the environment.94
But localities are not only passive entities on which
international duties and powers are imposed. They also take an
affirmative approach, initiating and forming transnational law by
entering into agreements with localities across borders, which, when
authorized by their states, might be recognized as part of
international law. As Benvenisti illustrates, sometimes localities
reach transboundary agreements over water resources even when no
treaties between their states exist and without the consent of their
states. For instance, Palestinian and Israeli localities reached a
92. See EYAL BENVENISTI, SHARING TRANSBOUNDARY RESOURCES: INTERNATIONAL
LAW AND OPTIMAL RESOURCE USE 156–200 (2002).
93. Id. at 46–63.
94. See Agenda 21, Annex II, Report of the United Nations Conference on
Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1 (vol. I) (Jan. 1, 1993).
Furthermore, the Agenda calls for the “decentralization of government services (relating to
water services management) to local authorities, private enterprises and communities,” thus
placing localities at the heart of the environmentalist agenda. Id. ch. 18, § 12(a)(i); see also
BENVENISTI, supra note 92, at 143 n.35.
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cooperation agreement in order to solve the problem of a polluted
water basin that the two shared.95 Indeed, as I shall argue later on,
although I am currently stressing the top-down aspects of the
international regulation of localities, another strong force
contributing to the rise of localities in international law is a bottomup approach, under which local governments are taking affirmative
action.96
B.
Localities Becoming Objects of Global, International, and
Transnational Regulation
This section explores the attempts currently made by
numerous international bodies to regulate localities and their legal
relations with their states. Targeting localities as objects of
regulation means that the physical planning, economic structure,
urban development, housing schemes, and poverty management
become the business of international and global institutions and not
solely of the locality and national governments. In addition, various
UN agencies, IOs, and transnational entities like the EU have become
increasingly interested in transforming relations between localities
and their states, as demonstrated through efforts to promote an
agenda of “decentralization” and “subsidiarity.” These two concepts
refer to political and legal schemes according to which decisionmaking powers and the provision of public services should be
devolved to the smallest jurisdictions that can efficiently perform
them. Indeed, many international documents and institutions have
been targeting localities as objects for regulation concerning what
they should look like and what their relationship with the nation-state
should be. As I mentioned earlier on, most states form the
relationship between the central and local governments through their
domestic local government laws. The relationship includes what
authority localities should possess, what their duties should be, how
much discretion they should have when using their powers, and what
the level of fiscal dependence or autonomy of cities vis-à-vis their
states should be. These legal variables factor in when assessing
where along the spectrum the state stands: how close it is to the
unitary and centrally controlled end, or how much it resembles the
decentralized, federal-like end of the spectrum.
Indeed, in recent years, the outcome of various activities of
international institutions has been the legal regulation of where
95. Id. at 140–41.
96. See infra Part IV.C.
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various domestic regimes should lie along the continuum of
centralization versus decentralization or bureaucracy versus
democracy. Due to the variety of institutions and documents that can
be mentioned here, I shall give a few major examples demonstrating
how profound this development has been.
These different
institutions and documents share a renewed interest in localities that
has at its core the view that local governments are existing entities
that ought to be transformed and reconfigured according to various
ideological commitments, social visions, and economic goals.
Together, they form a new international, localist agenda.
1.
United Nations Reconfiguration of Localities:
Decentralization and Democracy
One of the most lucid manifestations of the rise of localities
in the new world order is the recent UN effort to reconfigure and
regulate the relationships between local and state governments and
among localities within states. This reconfiguration and its rationales
are in line with current ideologies that guide the new global
governance project that many international institutions have been
advancing for the past fifteen years: decentralization, market-based
economic reforms, democratization, and community empowerment.97
A huge volume of activities performed by the United Nations Centre
for Human Settlements (UNCHS) demonstrates this important
transition, whereby localities become objects of regulation and
vessels through which various international policies are advanced.
UNCHS—later renamed UN-Habitat—was established in
1976 under the Vancouver Declaration on Human Settlements
(Habitat I).98 The Centre was authorized by the General Assembly
“to promote socially and environmentally sustainable towns and
cities with the goal of providing adequate shelter for all.”99
97. Scholars have observed a similar ideological and rhetorical shift in policies and
documents of international and transnational institutions. See, e.g., Kerry Rittich, The
Future of Law and Development: Second Generation Reforms and the Incorporation of the
Social, 26 MICH. J. INT’L L. 199 (2004); Robert Wai, Transnational Liftoff and Juridical
Touchdown: The Regulatory Function of Private International Law in an Era of
Globalization, 40 COLUM. J. TRANSNAT’L L. 209 (2002).
98. The Vancouver Conference “was convened following recommendation of the
United Nations Conference on the Human Environment and subsequent resolutions of the
General Assembly, particularly resolution 3128 (XXVIII) by which the nations of the world
expressed their concern over the extremely serious condition of human settlements,
particularly that which prevails in developing countries.” United Nations Conference on
Human Settlements (Habitat I), May 31–June 11, 1976, Vancouver Declaration on Human
Settlements, ¶ 1, U.N. Doc. A/CONF.70/15 (1976) [hereinafter Vancouver Declaration].
99. U.N. Habitat, United Nations Human Settlement Programme, Overview: Mandate,
available at http://www.unhabitat.org/about/mandate.asp (last visited Apr. 11, 2006).
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However, this development-oriented agency later became the main
engine for a much more profound shift in how localities have been
viewed by international policymakers. Indeed, Habitat has evolved
into an international body that promotes the transformation of
“human settlements” (as various UN documents refer to them) into
independent and empowered actors, bringing them closer to
obtaining the status of international legal subjects.
At first, then, UNCHS was mainly a development-oriented
agency, lacking any meaningful localist or city-oriented ideology.
According to the Vancouver Declaration of 1976, localities were the
mere “instrument and object of development,”100 rather than
independent entities representing voluntary or democratically
governed human associations. Habitat I addressed only national
governments and international organizations and called upon them to
take various actions, but ignored the local governments themselves as
free agents or as better representatives of local population. In other
words, Habitat I reflected the classic position of international law as
regards localities: As a matter of legal personality, localities are
subsumed by their states that represent them as well as their interests,
and they exist only as instruments for the implementation of
nationally as well as internationally imposed policies.
Over the years, this approach has changed, slowly but
dramatically. The second United Nations Conference on Human
Settlements (Habitat II)101 was already influenced by an altogether
different ideology. Though “development” was still a primary
concern of the Istanbul Declaration and the Habitat Agenda,102 new
concepts and policy proposals emerged as equally important
impetuses for the project, practically turning UNCHS into a platform
for advancing a clear and novel localist agenda. Hence, alongside
development-related issues such as sustainability, poverty,
unemployment, homelessness, and pollution,103 new ideological
commitments appeared, such as decentralization, local democracy,
100. Vancouver Declaration, supra note 98, pt. I, ¶ 2.
101. The Conference took place in Istanbul on June 1996. See United Nations
Conference on Human Settlements (Habitat II), June 3–14, 1996, Istanbul Declaration on
Human Settlements, U.N. Doc. A/CONF.165/14 (Aug. 7, 1996) [hereinafter Istanbul
Declaration]. For an overview of Habitat II, see Janet Ellen Stearns, Voluntary Bonds: The
Impact of Habitat II on U.S. Housing Policy, 16 ST. LOUIS U. PUB. L. REV. 419, 420–29
(1997).
102. See United Nations Conference on Human Settlements (Habitat II), Istanbul, Turk.,
June 3–14, 1996, The Habitat Agenda, Annex II, Report of the United Nations Conference on
Human Settlements (Habitat II), U.N. Doc. A/CONF.165/14 (Aug. 7, 1996) [hereinafter
Habitat Agenda].
103. Istanbul Declaration, supra note 101, ¶¶ 4–11; Habitat Agenda, supra note 102,
ch. III, ch. IV, pts. B–C.
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and public participation in decision making.104 Furthermore, local
governments were recognized as the “closest partners” of central
governments and “as essential [as states] in the implementation of the
Habitat Agenda.”105 Indeed, much like Sassen and others argue,
globalization brings with it the potential to “destabilize older
hierarchies.”106 The international turn to local empowerment should
also be understood as an attempt to destabilize non-democratic
regimes. As I have already suggested, localist ideology sees local
democracies as schoolhouses for democracy, and the belief that local
democratic decision-making can destabilize authoritarian regimes
and inculcate democratic tendencies in the population has been a
perennial motivation for such international localist schemes.
Thus, the Habitat Agenda calls for the formation of “national
and international local authority associations/networks” and “other
national and subnational capacity-building institutions.”107 More
specifically, the Agenda recommends that governments review and
revise legislation in order to increase local autonomy and
participation in decision-making, implementation, and resource
mobilization; educate citizens at the local level; train local officials;
combat local corruption; increase local efficiency; and strengthen
local cooperation with the UN and other international networks.108
Thus, the Habitat Agenda reconceptualizes and reconfigures
local governments and their relationship both with their states, as
well as with IOs. It serves as a manifestation of the emergent new
trinity of locality-state-world, as international bodies are becoming
heavily involved and invested in the transformation of state-local
relations. The Agenda stands in stark opposition to the previous
international legal order that was seemingly indifferent to the internal
political structure of states, how much autonomy localities enjoy visà-vis the state, how independent from the state their fiscal structure
is, and what services they provide their residents. The Habitat
Agenda demonstrates that deference to states as regards their powersharing with localities is no longer the attitude of the international
regime, and in its stead there is a clear position advocating
decentralization and increased local autonomy and efficiency.
The UN took this path to a still greater extreme. In 1998,
following Istanbul, the UNCHS and the World Association of Cities
104. Istanbul Declaration, supra note 101, ¶¶ 12–15; Habitat Agenda, supra note 102,
ch. IV, pt. D.
105. Istanbul Declaration, supra note 101, ¶ 12.
106. Saskia Sassen, The State and Globalization: Denationalized Participation, 25
MICH. J. INT’L L. 1141, 1148–50 (2004).
107. Habitat Agenda, supra note 102, ch. IV, pt. D, § 1, ¶ 178.
108. Id. ch. IV, pt. D, § 2, ¶ 180.
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and Local Authorities Coordination (WACLAC)109 published a
document entitled “Towards a World Charter of Local SelfGovernment,” the result of which is envisaged to be “promulgated as
an official United Nations Convention.”110 Here, the evolution of the
localist ideology reached a global scale: decentralization became a
dominant theme, overshadowing, if not replacing altogether, old-style
development strategy and ideology.111
The most important innovations that appear in the 1998
document are the following three principles that are supposed to
guide the Charter-to-be as regards cities: subsidiarity, proximity, and
autonomy. These principles dictate that decisions should be taken at
the level “closest to the citizens” while “only those tasks which the
local level cannot effectively carry out alone should be referred to
higher levels.”112 In addition, localities are seen as important
“partners” in the process of strengthening democracy throughout the
world. Indeed, the new jargon of localism is increasingly using
justifications from democracy, relying on the notion that localism is a
key element in breeding democracy in developing countries and
elsewhere. Although it echoes Tocqueville’s idea that autonomous
localities are the best schoolhouses for democracy,113 the UNCHS
idea of local democracy is nevertheless distinct: It highlights the
utility of local democracy as an instrument for stability, economic
development, and independence, and perhaps even a safeguard
against radicalism, terrorism, and authoritarianism.114
109. WACLAC was established in 1996 by an alliance of associations of cities and local
authorities whose mission was to “represent the local government sector in the international
arena and in particular with the United Nations.” See World Association of Cities and Local
Authorities Coordination (WACLAC), http://www.camval.org (last visited Jan. 15, 2006).
110. See United Nations Centre for Human Settlements (Habitat) and World Association
of Cities and Local Authorities Coordination (WACLAC), Towards a World Charter of
Local Self-Government ¶ 4 (May 1998), available at http://www.unchs.org/unchs/english/
feature/charter.htm. [hereinafter World Charter].
111. As Rittich acutely observes, development ideology and policy has also radically
changed in recent years:
[T]he development and market reform projects . . . no longer revolve solely
around the promotion of economic growth; at least at the rhetorical level, social
issues have now been accepted both as ends of development in and of
themselves and as important factors to the achievement of general economic
growth.
Rittich, supra note 97, at 202–03.
112. World Charter, supra note 110, ¶ 1.
113. See supra note 57 and accompanying text.
114. It is perhaps ironic that Madison argued the opposite: Strong localities, he argued,
are likely to become breeding places for radicalism and extremism. In his view, a strong
federal government is needed in order to mitigate the extreme tendencies that local popular
majorities are prone to develop. See THE FEDERALIST NO. 10 (James Madison), supra note
60, at 48–52.
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The centrality of the concept of subsidiarity in current global
governance projects—in this case UN’s activity concerning local
governments—is highly important as it marks a radical shift in the
conception of the locality vis-à-vis the state.115 Originating in
Catholic theology,116 the principle of subsidiarity has come to
embody the strange but currently happy marriage between libertarian
values of individual liberty, economic efficiency, and local
experimentation117 with communitarian values of community
autonomy and solidarity. The theory of subsidiarity holds that
central governments should be limited to a subsidiary function, only
acting where a more immediate local level is unable to act, or fails to
do so.118 Subsidiarity has come to dominate international human
rights law,119 EU law,120 and conservative jurisprudence in the
Contemporary proponents of the principle of
United States.121
subsidiarity rely on the advantages of jurisdictional competition and,
more generally, on the economic efficiency of the devolution of
powers to localities.
Applying subsidiarity to localities, and thus declaring local
governments as the primary representatives of the people, and the
primary providers of public services, thus turning the state into a
secondary “backup” contractor and a second-best representative of
the will of the people, is a hundred-and-eighty degrees shift in the
received wisdom of international law regarding localities. By no
chance, the Draft of the European Constitution also adopted the
principle of subsidiarity as regards localities in the organization of
the EU.122 This change has the potential of transforming the basic
115. One commentator went so far as to say that the principle of subsidiarity has
become a structural principle of human rights law. See Paolo G. Carozza, Subsidiarity as a
Structural Principle of International Human Rights Law, 97 AM. J. INT’L .L. 38 (2003). For
a discussion of the principle of subsidiarity and its advantages, see BENVENISTI, supra note
92, at 138–43.
116. See Robert K. Vischer, Subsidiarity as a Principle of Governance: Beyond
Devolution, 35 IND. L. REV. 103, 108–15 (2001); Carozza, supra note 115, at 40–42.
117. See John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s
Jurisprudence of Social Discovery, 90 CAL. L. REV. 485, 510 (2002).
118. See, e.g., George A. Bermann, Taking Subsidiarity Seriously: Federalism in the
European Community and the United States, 94 COLUM. L. REV. 331, 336 (1994); Andrew
Koppelman, How “Decentralization” Rationalizes Oligarchy: John McGinnis and the
Rehnquist Court, 20 CONST. COMMENT. 11, 12 (2003).
119. See Carozza, supra note 115, at 39.
120. See, e.g., Denis J. Edwards, Fearing Federalism’s Failure: Subsidiarity in the
European Union, 44 AM. J. COMP. L. 537 (1996).
121. See Vischer, supra note 116, at 103–04.
122. Drafted by the European Convention and signed by its leaders on October 2004,
the Draft Constitution was rejected by numerous Member States following its popular
rejection in referenda. The Draft Constitution extends the important principle of
subsidiarity: For the first time it includes not only the national sphere (vis-à-vis the EU), but
also the local and regional ones. Prior to the constitution, the principle of subsidiarity only
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political unit of international law.
Furthermore, the Draft of the World Charter grants local
governments various important procedural rights, the right “to define
appropriate forms of popular participation and civic engagement in
decision-making,”123 the right “to form associations for the defence
and promotion of their common interests,” provision of services and
cooperation with other localities,124 the right to be consulted when
other levels of government prepare legislation affecting them,125 the
right to form international associations,126 and “the right of recourse
to judicial remedy in order to safeguard their autonomy.”127
Note that these procedural rights are safeguards given to
localities as against their states, through which the world appears as
the protector of localities from their overly dominating states.
Indeed, the vision in the Draft is of a minimal state, a back-up state
that intervenes with local autonomy and local decision-making only
in relatively rare cases, while the rule is local autonomy and
subsidiarity. Thus, the Charter, if ratified, might radically transform
the way localities look throughout the world, as well as states. The
adoption of a general obligation of states to decentralize, the embrace
of the principle of subsidiarity and the implied mistrust of states it
reflects, and the encouragement of localities throughout the world to
become more independent and self-reliant marks an ideology that
until recently was almost anathema to the ideology of international
law and its focus on states and state actors. Even if this process can
be seen as merely an extension of international law’s growing
acknowledgement of nonstate actors, it is still crucial to see that the
Charter takes another giant leap forward in requiring states to share
their power with lower tiers of government.
Yet, the Draft does not go so far as to equate localities’ status
to that of states, and it leaves important veto powers in their hands.
dealt with the relationship between the EU and national governments. Now, the Constitution
clearly states that the EU cannot take decisions if these can be taken at least as effectively at
the national, but also at the local or regional level. It is hard to overstate the radical nature of
this extension. Article I-11 sets forth the following formulation of the basic principle of
subsidiarity:
Under the principle of subsidiarity, in areas which do not fall within its
exclusive competence, the Union shall act only if and insofar as the objectives
of the proposed action cannot be sufficiently achieved by the Member States,
either at central level or at regional and local level, but can rather, by reason of
the scale or effects of the proposed action, be better achieved at Union level.
Treaty Establishing a Constitution for Europe art. I-11, 2004 O.J. (C 310) 1, 14.
123. World Charter, supra note 110, art. 10.
124. Id. art. 11.
125. Id.
126. Id. art. 12.
127. Id. art. 13.
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States still hold the most important powers of ratifying the
Charter,128 “specify[ing] the categories of local or regional
authorities to which it intends to confine the scope of the Charter,”129
and “specify[ing] the territory or territories to which th[e] Charter
shall apply,” thus exempting certain localities from the Charter’s
provisions right from the start.130 States can also decide to withdraw
from the Charter altogether (with due notice to the Secretary
General),131 or to amend the territorial application of the Charter,
thus creating special exemptions for various localities or including
localities that were previously exempted, at their will.132
Despite the formal ability of states to control and contain the
process of radical decentralization that entering the Charter might
lead to, these formal powers might prove sterile. Leaving aside the
option that if widely accepted the Charter might eventually become
jus cogens, internal developments might lead to states’ inability to
withdraw from the Charter.
Studies throughout the world
demonstrate that once given authority and autonomy, and the more
local governments become major actors in national politics and
economy, the harder it is to keep them docile and subservient to
states. I deal with this point below.
On June 2001, the General Assembly reaffirmed that the
Istanbul Declaration and the Habitat Agenda will remain the basic
framework for sustainable human settlements development in the
years to come.133 This process culminated early in 2002 with the
adoption of a General Assembly resolution,134 in which governments
strengthened the status of UNCHS by transforming it into a fully
recognized program, renamed as the United Nations Human
Settlements Programme (UN-Habitat). UN-Habitat was given the
status of a subsidiary of the General Assembly and put under the
Economic and Social Council (ECOSOC), which coordinates the
work of all the UN’s fourteen specialized agencies.
128.
129.
130.
131.
132.
133.
Id. arts. 14, 18–19.
Id. art. 15
Id. art. 20(1).
Id. art. 21.
Id. art. 20(2)–(3).
Declaration on Cities and Other Human Settlements in the New Millennium, G.A.
Res. S-25/2, U.N. GAOR, 25th Sp. Sess., 6th plen. mtg., U.N. Doc. A/Res/S-25/2 (June 9,
2001); see also Role of Local Authorities, Other Partners and Relevant United Nations
Organizations and Agencies in the Review and Appraisal Process: Progress Report on the
Preparations of the Proposed World Charter of Local Self-Government, U.N. Doc.
HS/C/PC.1/CRP.7 (Apr. 20, 2000) (anticipating the resolution).
134. Strengthening the mandate and status of the Commission on Human Settlements
and the status, role, and functions of the United Nations Centre for Human Settlements
(Habitat), G.A. Res. 56/206, U.N. GAOR, 56th Sess., 90th plen. mtg., U.N. Doc.
A/Res/56/206 (Feb. 26, 2002).
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What is slowly emerging from activities such as the UN’s
Habitat Agenda is an international set of rules that govern localities
with a specific set of ideas about good government and the ideal
state. True, it is still unclear when, and whether at all, such a charter
will become an official international covenant. Either way, what we
see is a gradual evolution of the local government as an international
legal concept. This is achieved not only through concrete policy
measures, but also by a set of concepts that accompany the
reconfiguration of the relationship between localities, states, and IOs.
In this restructuring of the basic political units of the international
and national order, distinct and even opposing discourses and
ideologies that support the same project are coming together:
decentralization, localism, privatization, multiculturalism, and
democratization. The political units that embody these concepts
change and transform them, giving them new meaning, and while
doing so are also transformed themselves.
And yet, it is crucial to note that much like everything else in
the new world governance project, this new system of rules is not
determined or orchestrated by a well defined set of institutions, but
rather by a multitude of decentralized entities, some international like
the UN, some national, and others local. Thus, the globalization that
is changing the face of localities throughout the world differs from
traditional internationalization.
While the latter refers to a
centralized plan coordinated by so-called official international bodies
such as the UN, the former is emerging in many places, both topdown and bottom-up, and is led by different actors, often competing
among themselves on resources and influence, and disagreeing on the
desired goals and values.
2.
The World Bank’s Regulation of Localities: Transforming
Decentralization
For the World Bank, one the major actors in contemporary
global governance, the focus on localities is part and parcel of its new
development strategy, augmenting the traditional goal of furthering
economic growth with advancing participatory democracy and other
“social” goals.135 The Bank’s policies concerning localities are also
intertwined with its assessment that the world is moving towards
urbanization, and the prediction that “within a generation the
majority of the developing world’s population will live in urban areas
and the number of urban residents in developing countries will
135. The Bank has indeed integrated into its policies—at least rhetorically—the need to
preserve “cultural heritage” and to induce “sustainable development.”
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double, increasing by over two billion inhabitants.”136 The attention
given to localities, and particularly to urban areas, is an outcome of
the fact that more and more people live in urban settings that need to
become more livable,137 but it is also a result of an idea that
decentralization is a necessary condition for economic growth. Thus
the Bank targets local governments, imbuing them with a new
meaning. In regimes where localities exist as mere administrative
subdivisions of their states, the Bank aims to strengthen them,
delegate authority to them, burden them with duties such as the
provision of public services, and armor them with immunities vis-àvis the state.
According to these suggested reforms, where local
governments are mere administrative conveniences, subject to the
state’s sovereign will,138 they ought to gain fiscal independence and
political autonomy, changing what it means to be a locality. In fact,
though the Bank advocates decentralization, it actually sees itself as
merely piggybacking decentralization processes that have already
been taking place across the globe.139 Its main objective, therefore,
is to direct decentralization in a specific way, one that will advance
economic growth and fit within the Bank’s general ideology of
efficiency, small government, and a reduction in state subsidies.140
The Bank’s most explicit goal is fiscal decentralization, the
creation of a fiscal structure in which localities mostly fund
themselves and provide public services based on their economic
abilities. Such fiscal decentralization is closely linked with political
decentralization and expanded authorities so that a locality will be
able to “tax and spend” as it wills, except for activities designated
national where the central government can and should intervene.
136. CITIES IN TRANSITION, supra note 69, at 1. According to the Bank’s predictions, by
the year 2020, urban residents will constitute the majority everywhere in the world except
for south Asia and Sub-Saharan Africa. Id. at 32; see also The World Bank, World
Development Indicators 2005, http://www.worldbank.org/data/wdi2005/wditext/Section1_
1_7.htm#fg2.
137. Making cities “livable” is one major theme that World Bank’s documents
advances. See CITIES IN TRANSITION, supra note 69, at 97–105.
138. As I mentioned earlier on, various national legal regimes vary significantly in this
respect, but in many countries, cities’ charters can be revoked by a regular legislative act and
so can their powers and authorities.
139. “The confluence of four worldwide trends makes reconsidering the Bank’s urban
strategy both timely and urgent: urbanization, decentralization, globalization, and
government renewal.” CITIES IN TRANSITION, supra note 69, at 32.
140. For the World Bank, decentralization is a measure taken by governments
throughout the world “in an effort to make [it] more responsive to citizens and to increase its
efficiency.” Id. at 34. But even more importantly, it is a mark of liberal capitalism, a
healthy antidote to the centralist tendencies of socialist regimes: “[I]n the Europe and
Central Asia region, for example, local governments were effectively stripped of any
significant role during the socialist era.” Id. at 111.
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Such decentralization comes with a diminished role of the central
state. Interestingly, the Bank’s objective to assist localities to
become independent of their states and to be able to access the global
capital market has another side to it, assisting states to become
independent of their localities, and to be able to gradually stop
supporting them financially. “[C]reative and flexible forms of Bank
Group support will be especially important where central
governments, often wisely, do not wish to continue providing
sovereign guarantees to subnational governments after
decentralization.”141
These are profound structural reforms and they are closely
linked with the reconfiguration of the concept of locality itself.
Though the local government remains a public corporation in the
visions of the World Bank, it is pushed in the direction of becoming
more private. Indeed, the World Bank’s ideal city, and ideal locality
in general, should have these four features:
livability,
competitiveness, good government, and bankability.142 Thus, the
logic of a self-funding closed market, of efficiency and privatization
of various public services is prevalent in the Bank’s rhetoric and
policies. Localities are encouraged to engage in public-private
partnerships. In other words, in the historical debate concerning the
nature of localities, the Bank takes the position of approximating
localities to private corporations. In this respect, it fits within the
new governance system that sees private actors, as well as private
law as vehicles for advancing the Bank’s political and economic
policies.143
The World Bank advances its policies through voluntary
agreements in which localities agree to make structural reforms in
return for loans and financial assistance. Even though these
agreements do not count as international law, they are a crucial
element in what contemporary scholarship sees as the new
transnational legal order. Currently, the World Bank is involved in
contractual relationships with hundreds of localities throughout the
world.144 The Bank’s “Urban Development” project is central to the
141. Id. at 12.
142. Id. at 48–56.
143. For a fascinating analysis of the way transnational institutions and international law
use private actors and private law in the new global governance project, see generally Dan
Danielsen, Symposium: Comparative Visions of Global Public Order (Part I): How
Corporations Govern: Taking Corporate Power Seriously in Transnational Regulation and
Governance, 46 HARV. INT’L L.J. 411 (2005); Robert Wai, Symposium: Comparative
Visions of Global Public Order (Part I): Transnational Private Law and Private Ordering
in a Contested Global Society, 46 HARV. INT’L L.J. 471 (2005); Wai, supra note 97.
144. The locations of these localities are all over the developing world, in Asia, Eastern
Europe, former Soviet Russia, Africa, the Middle East, and more.
See CITIES IN
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Bank’s activities and it has gained the cooperation of UN-Habitat.145
These contracts implement the decentralizing-localist
ideology of the Bank and de facto reconfigure local governments,
states, and the relationship between them. They also strengthen the
involvement of global actors in the previously two-partite relations.
Much like in the case of the UN’s Habitat Agenda and World Charter
Draft, what marks the Bank’s contemporary human settlements
project as part of the current global turn to localism is the unique
combination of two different sets of ideological commitments, both
pointing to the direction of decentralization. On the one hand,
localities are seen as vehicles to advance neo-liberal ideology with its
emphasis on privatization, efficiency, public-private partnerships,
and economic soundness. On the other hand, localities are seen as
the authentic manifestation of pre-existing human communities,
hence the emphasis on grassroots mobilization, democratic
participation, and bottom-top initiatives.
These ideological
commitments that could be described as theoretically contradictory,
come together almost seamlessly in the new international localism,
and rhetorically, are an extremely powerful justification for its
regulatory ideal as they offer the best model of a locality: democratic
and efficient, public and private, participatory and well-managed,
egalitarian and competitive, bottom-up as well as top-down, national
yet internationalized.
But when applied, it is unclear whether some of the tensions
that the new urban governance project seeks to transcend can be
avoided. As with any formal legal change, it can lead to unexpected
and sometimes undesirable results. Growing inequality among
localities, exacerbated difficulties with cooperation, social
fragmentation, and urban sprawl are such unintended consequences
that are often associated with some forms of decentralization and
localist ideology. In Israel, for example, a process of accelerated
fiscal decentralization took place since the 1980s.146 This process
has led localities to compete with each other fiercely, and to adopt
measures that were highly destructive: inefficient land use, an
TRANSITION, supra note 69, at 111–12, 118.
145. The “Cities Alliance” initiative is a Habitat program aimed at advancing the Bank’s
strategic plan for cities, and it aims to mobilize $25 million in the coming three years to
support city development programs and various other projects in accordance with the Bank’s
urban policy. See The World Bank, World Bank Urban and Local Government Strategy,
available
at
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/
EXTURBANDEVELOPMENT/0,,contentMDK:20158153~menuPK:1358771~pagePK:148
956~piPK:216618~theSitePK:337178,00.html (last visited Apr. 11, 2006).
146. Though the process in Israel was not a direct outcome of World Bank policies, it is
a similar ideological commitment that guided the structural reform.
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aggressive “race to the ratable,”147 localities fighting over foreign
direct investment (FDI) and plants by lowering labor standards and
reducing tax rates to the detriment of their residents,148 externalities
and growing inequality among localities.149
Benvenisti’s study of transboundary cooperation also
demonstrates the problems that stem from fragmentation and
decentralization, albeit in the specific context of natural resources’
management. Indeed, Benvenisti labels the World Bank’s “a
philosophy of disengagement.” A philosophy aimed at limiting
common ownership to the lowest possible minimum, and viewing
international law as a rule system that could minimize the friction
among states and resolve disputes by way of adjudication and rigid
contractual obligations.150 This disengagement philosophy fails to
address problems that arise out of situations in which disengagement
is impossible for various reasons, such as geography. It also lacks in
that it induces competition even where cooperation is not needed for
various reasons, such as avoiding market failures and protecting
minorities.
In its current urban advancement project the Bank seems to be
aware of such risks and it explains that its strategies in helping
localities become more competitive “must avoid misguided efforts to
simply attract investment from other locations with tax or public
investment incentives (a race to the bottom).”151 But a “race to the
bottom” is precisely what had happened in many areas where
decentralization, especially fiscal was not accompanied by a strong
web of central forces that facilitated cooperation and prevented
localities from using their authorities in a rent seeking and selfserving manner. Hence, it is unclear whether there are enough
institutions and legal instruments that could mitigate the problems
that seem endogenous to radical decentralization, especially when
accompanied with the shrinking of states’ sovereignty.
147. Whereby localities guided their land use policies and strategic behavior vis-à-vis
the State by a sole criterion—how much tax they will be able to collect.
148. See Jacqueline J. Ferber, The U.S. Foreign Direct Investment Policy: A Quest for
Uniformity, 76 MARQ. L. REV. 805 (1993).
149. See Blank, supra note 72, at 92–119; see also ISSACHAR ROSEN-ZVI, TAKING SPACE
SERIOUSLY: LAW, SPACE AND SOCIETY IN CONTEMPORARY ISRAEL (2004).
150. He opposes the philosophy of disengagement” to “the philosophy of integration,”
and claims that the evolution of the relevant norms in international law can be traced to the
clash between these two approaches. See BENVENISTI, supra note 92, at 156–58.
151. CITIES IN TRANSITION, supra note 69, at 49 (internal quotations omitted).
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Regional Experiences: Europe and NAFTA
Regional agreements and treaties form a large and growing
body of international law. European countries have been reshaping
the legal status of cities in a post-national setting. It should be noted
that what has developed is an intricate legal system dealing with the
authorities and duties of local governments that are subject to a
national legal system as well as to an international legal system, be it
the Convention for the Protection of Human Rights and Fundamental
Freedoms or the founding documents of the EU. The European
Court of Justice (ECJ) and the European Court of Human Rights
(ECHR) thus regulate, via adjudication, localities and their
relationships with their states, while a third party was involved: the
legislative and administrative bodies of the EU and the ECHR.
The sole sovereignty of European states was infringed when
European courts decided on matters pertaining to the division of
powers between localities and states and set the degree of autonomy
given to cities by their states according to international documents—
EU documents and the Convention—rather than by referring to the
domestic legal system alone.152
The emerging European jurisprudence of local government
law has contributed to the evolution of a set of legal standards
regulating not only state-locality relationships but also how a locality
should look like as a matter of its optimal size. In the case of Uradni
list Republike Slovenije, the Slovenian Supreme Court held that the
Slovenian constitution prohibits local units from exceeding the size
necessary for the normal functioning of local government.153
However, the Slovenian Constitution actually had no specific
provision referring to the appropriate size of localities, and the Court
reached its conclusion based on what it called “‘the European
concept of local government’ as the appropriate standard of
review.”154 This case demonstrates the fact that global governance
152. As I suggested earlier, the Draft Constitution includes articles that further weaken
states and give more power and autonomy to cities (and regions). This is a tradition that
could go back to The European Charter of Local Self-Government of 1985 (the Strasburg
declaration), one of the most important milestones of the emergence of cities in European
law. It has been a source of inspiration for the drafters of the draft of the World Charter and
has influenced the evolution of the status of localities in Europe. In this Charter, most
contemporary principles of localism have been iterated: democratization, decentralization,
and subsidiarity. The Charter impacted the way the U.N. and other transnational networks
of cities think about local power and the relationship between cities and states.
153. Odlocba st. U-I-90/94, Uradni list Republike Slovenije, st. 29/94 (Slovn.),
available at http://www.sigov.si/us/eus-decs.html (English translation). For a description of
the case, see Bojan Bugaric, Courts as Policy-Makers: Lessons from Transition, 42 HARV.
INT’L L.J. 247, 268–69 (2001).
154. Bugaric, supra note 153, at 268; see also SLOVENIA CONST. arts. 9, 138–44.
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projects increasingly develop a comprehensive view of localities,
which they previously lacked. Matters that were once the business of
urban planners, political theorists, and economists as regards the
physical planning of a locality, its optimal size and its economic
structure are currently embraced by global policymakers, who are
advancing their policies by using global legal institutions. The
importance given to localities in the new global order renders every
aspect of the locality a matter for global regulation, including the
proper size of a locality, the taxation schemes it is allowed to plan,
and desired relations with the state.
What European localities have been experiencing in the past
few decades, the member states of NAFTA are now beginning to
notice. A regional agreement with no clear agenda or vision as
regards localities can impact them in the most unexpected manner,
and its ramifications can be quite far reaching. Though NAFTA has
no specific requirements regarding the desirable legal and political
structure of localities, nor does it specify what the relations between
the central state organs and localities ought to be, it actually also has
the potential to impact the United States’ and other states’ local
government law. As Frug and Barron show, once the world, in this
case a transnational NAFTA legal regime and its institutions, begins
to regulate and adjudicate various disputes that involve localities,
they become objects for international regulation, and their
relationship with their states has a good chance to be scrutinized and
transformed by these international entities.155
Indeed, another outcome of international involvement in
state-local government relations is possible.
Where these
relationships are not well defined, where they are a matter of political
contestation and judicial discretion, international law has the
potential to rigidify them. For instance, NAFTA’s decentralization
scheme seems to impose a method of legal organization, calling for a
“clear and transparent” division of powers rather than one decided on
Although the Slovenian Constitution provides for powerful and autonomous self-governing
localities, it does not specify any limitations on their sizes.
155. See Frug & Barron, supra note 1. See their analysis of the case of The United
Mexican States v. Metalclad Corp., BCSC 664 (2001), where the Supreme Court of British
Columbia (partly) upheld a decision of a NAFTA tribunal to award Metalclad (a U.S.
corporation) compensation for losses it suffered due to the refusal of a Mexican local
authority to let it operate a hazardous waste facility within its jurisdiction. One of the
findings of the NAFTA tribunal was that Mexico violated its obligations under NAFTA
since it did not establish a clear and transparent legal system in which investors would know
what legal authorities the localities possess. This ambiguity, ruled the tribunal, caused
Metalclad (through its subsidiary) to err with respect to a property deal it made and exposed
it to expropriation. See also the discussion of this case in Vicki Been & Joel C. Beauvais,
The Global Fifth Amendment? NAFTA’s Investment Protections and the Misguided Quest
for an International “Regulatory Takings” Doctrine, 78 N.Y.U. L. REV. 30 (2003).
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a case-by-case basis through an ongoing dialogue between courts and
legislatures.156 Especially in the context of trade and commerce,
where determinacy and calculability are superior values, legal
systems who do not conform and that choose to maintain some
ambiguity in the exact division of power between tiers of
government, might find themselves exposed to international edicts to
establish specific division of powers between the state and localities.
Where the exact boundary between central power and local
autonomy was a matter of internal political contestation and
dialectical relations within the state, the world has become involved
as a third party.
C.
Localities Becoming Enforcers of International Norms and
Standards
Another crucial aspect of the emergence of localities as
central actors on the global stage is their participation in enforcing
international legal standards. Until recently, it seemed that this role
had been imposed on localities from above, by central governments,
central legislatures, and courts.157 However, in recent years localities
are no longer mere state agents that simply implement their state’s
international obligations. In this section, I analyze the bottom-up
dimension of local enforcement of international law, whereby
localities initiate such enforcement.
1.
Adoption of International Norms by Localities
One of the most lucid manifestations of the internalization of
international norms and of global legal ideas in localities is the
activity that has taken place in numerous jurisdictions throughout the
world to locally, rather than nationally enforce international human
rights norms. Such activities occurred in many localities in the
United States and elsewhere; some were more successful and some
156. For a thorough description of this kind of transnational imposition of rigid legal
frameworks, see generally Frug & Barron, supra note 1.
157. The famous work done by Harold Koh in this field is of great importance for
understanding the various modes of internalization that national systems adopt. Koh
identifies three types of internalization: social, political, and legal. Legal internalization, he
further argues, “occurs when an international norm is incorporated into the domestic legal
system and becomes domestic law through executive action, legislative action, judicial
interpretation or some combination of the three.” Harold Hongju Koh, The 1998 Frankel
Lecture: Bringing International Law Home, 35 HOUSTON L. REV. 623, 641–43 (1998); see
also Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599,
2656–57 (1997).
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less. For the purposes of this Article, I am less interested in the
justification for the internalization process that supposedly stems,
according to the “transnational norm entrepreneurs” literature,158
from the fact that it is achieved by popular involvement and a
continued dialogue between groups, individuals, and different levels
of government. Rather, I am interested in how local internalization
takes place since it demonstrates another way legal globalization
actually happens.
In other words, I want to stress the importance of the process
by which international norms become local—the localization of the
international. Such process-oriented analysis,159 gives more attention
to various actors that interpret, implement, transform, expand,
adjudicate, and enforce international and transnational norms in
domestic settings.
Indeed, the legal globalization of local
governments is achieved not only through top-down global edicts by
which international institutions superimpose their ideas and norms
upon submissive (or resisting) localities; rather, it is a complicated
process in which the enthusiastic embrace of international norms by
local agents plays a crucial role. And it is crucial to realize that the
globalization of ideas—the importation of global images, principles,
and ideas into locations throughout the world—should also be
understood as a process of importation of global ideas by local
groups, individuals, and governmental agencies or by national groups
that are interested in submitting localities to international norms or
institutions.160 Such importations thus involve local entities that can
158. The term “transnational law entrepreneurs” was coined by Koh in order to bring to
the fore the important role that various actors—transnational norm entrepreneurs—play in
the process of international law internalization. See Koh, Bringing International Law Home,
supra note 157, at 647. The concept of norm entrepreneurs in general was first used by
Sunstein. See Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903
(1996). For an explicit focus on local entrepreneurs, see Powell, supra note 25, at 51–56;
Catherine Powell, Dialogic Federalism: Constitutional Possibilities for Incorporation of
Human Rights Law in the United States, 150 U. PENN. L. REV. 245 (2001).
159. See generally Koh, supra note 11.
160. The issue of importation of legal norms and their internalization into other systems
has not only been dealt with in the context of international norms, but also generally in the
“legal transplants” literature, with respect to jurisprudence, private law, criminal law, and so
on. Usually, the literature deals with different modes of “importation” of legal rules and
legal institutions from one jurisdiction to another. Often, the focus is on individuals who
traveled from one country to the other and have been personally influenced by a legal system
(or an idea) and tried to import it to other countries. See the seminal work in this line of
theorizing by ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW
(2d ed. 1993). Duncan Kennedy has recently developed a theory regarding the
“globalization” of modes of jurisprudence and legal theorizing. See Duncan Kennedy, Two
Globalizations of Law & Legal Thought: 1850–1968, 36 SUFFOLK U. L. REV. 631 (2003).
For another recent sophisticated analysis of legal transplants, see Maximo Langer, From
Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the
Americanization Thesis in Criminal Procedure, 45 HARV. INT’L L.J. 1 (2003).
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be as eager to receive, as the global elements are to export.
Some scholars that dealt with the issue of local internalization
of international law focused their attention on the internal debates
within states as regards the interference of localities in their states’
foreign policy, and with the perennial dilemma of demarcating the
boundary between the power of the state to control its foreign affairs
and the autonomy of local governments.161 Others, however, have
emphasized the international legal aspects of such state and local
measures, since it casts a serious doubt on the cliché that federal
regimes are a “black box” as regards foreign affairs and that federal
states speak in one voice when dealing with other countries.162
Following this path, I wish to highlight the fact that this debate is no
longer just the business of federal regimes but also of unitary states.
Localities now appear as more than passive and obedient state agents
that comply with norms that have been superimposed upon them by
their all-powerful and sovereign states. Localities have become
autonomous enforcers of international norms.
International human rights law was the first area to become a
major target for such local enforcement efforts. Maybe because it
reached the U.S. Supreme Court and was declared
unconstitutional,163 the case of economic sanctions imposed by local
governments on companies that traded with Burma is probably the
most dominant example of a local adoption of international human
rights laws. During the 1990s, over twenty local governments and
states have adopted laws and directives that targeted Burma by
prohibiting state entities to do business with companies that trade
with it.164 Sarah Cleveland, Howard Fenton, and others show that
161. See Sarah H. Cleveland, Norm Internalization and U.S. Economic Sanctions, 26
YALE J. INT’L L. 1 (2001); Sarah H. Cleveland, Symposium: Crosby and the “One-Voice”
Myth in U.S. Foreign Relations, 46 VILL. L. REV. 975 (2001).
162. See Peter L. Fitzgerald, Massachusetts, Burma and the World Trade Organization:
A Commentary on Blacklisting, Federalism and Internet Advocacy in the Global Trading
Era, 34 CORNELL INT’L L.J. 1 (2001); Robert J. Delahunty, Federalism Beyond the Water’s
Edge: State Procurement Sanctions and Foreign Affairs, 37 STAN. J. INT’L L. 1 (2001);
Spiro, supra note 25; Ernest A. Young, Protecting Member State Autonomy in the European
Union: Some Cautionary Tales from American Federalism, 77 N.Y.U.L. REV. 1612 (2002).
163. See Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000). This
decision, in which the U.S. Supreme Court invalidated a Massachusetts government
procurement act which prohibited state entities to do business with companies that had
business ties with Burma, stirred lively academic discussion. See generally Cleveland,
Symposium, supra note 161; Fitzgerald, supra note 162; Powell, supra note 25. Indeed,
notwithstanding the fact that in Crosby the U.S. Supreme Court prohibited sub-federal units
to act in matters pertaining to foreign affairs, cities can still adopt norms and standards that
are in congruence with international law, as long as these norms do not conflict with specific
preemptions and are within the boundaries of Home Rule.
164. See Cleveland, Symposium, supra note 161, at 996; Peter L. Fitzgerald, Pierre
Goes Online: Blacklisting and Secondary Boycotts in U.S. Trade Policy, 31 VAND. J.
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local enforcement of human rights norms have been taking place for
quite a while with respect to Northern Ireland,165 apartheid South
Africa,166 Indonesia, Nigeria, and Cuba.167 And nowadays U.S.
localities are adopting laws in compliance with international human
rights norms that protect workers such as living wage municipal
bylaws and campaigns,168 preserve the environment, and protect
various minority groups such as migrant workers169 and gays and
lesbians.170 New York City’s and San Francisco’s Administrative
Codes and City Charters provide comprehensive examples of the way
in which localities can sometimes incorporate into their independent
norms various antidiscrimination provisions that surpass national
standards, reflecting internationally-influenced sensitivities.171
Examples of such local adoption and enforcement of
international norms and standards are hard to pinpoint since in many
cases the international influence is not made explicit by the agents
TRANSNAT’L L. 1 (1998).
165. See Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State
and Local Foreign Policy Trade Restriction, 13 NW. J. INT’L L. & BUS. 563, 567–69 (1993).
166. See Richard Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J.
INT’L L. 821 (1989).
167. See Cleveland, Symposium, supra note 161, at 997–99.
168. Across the United States, living wage campaigns have spurred in the past decade.
Roughly speaking, there are two main living wage measures: The first compels the locality
to pay its employees a living wage rather than minimum wage; the second, and the much
more radical, mandates all employers within the local jurisdiction to pay living wage. While
the first measure has swept the United States and now includes more than a hundred
localities across the country (cities that have adopted living wage requirements include St.
Louis, Boston, Los Angeles, Tucson, San Jose, Portland, Detroit, New York, Oakland, and
many more), the second has passed in only three cities. Living wage ordinances have been
passed in San Francisco, Santa Fe, and Madison. See Daniel B. Wood, “Living Wage” Laws
Gain Momentum Across US, CHRISTIAN SCI. MONITOR, Mar. 15, 2002, at 1.
169. The city of Tel-Aviv’s treatment of illegal guest workers is a case in point. In the
late 1990s, while the central government declared a “war” on illegal foreign workers and
presented measures aimed at pressuring them to “willfully” leave the state, Tel-Aviv’s
municipality formed a special agency (called “Messilla”) to take care of illegal workers’
problems, regardless of their status. It directly confronted the central government,
establishing its image as progressive and independent. Indeed, the city declared its policy
regarding the foreign workers as one which is motivated by the fact that “all human beings
are entitled with universal rights,” hinting to international humanitarian norms. See
http://www.biu.ac.il/SOC/sw/downloads/Ilan_141204.ppt.
170. Localities were among the first to grant same sex partners the same rights of
different sex couples. In addition, the debate concerning the City of San Francisco’s mayor
to marry gay and lesbian couples can serve as an example to an executive action that
internalizes international law. Though no explicit international norm exists that mandates
such marriages be allowed, the evolution of gay rights and of the institutions of gay
marriages in European countries might have had an important role in cities’ initiatives to
sanction gay marriage. See Lockyer v. City and County of San Francisco, 33 Cal. 4th 1055
(2004).
171. N.Y. City Admin. Code tit. 8; City of San Francisco Admin. Code ch. 12. Chapters
12J, 12F and 12K are most explicitly internationally oriented since they deal with foreign
commerce with Ireland and Burma, and adopt the provisions of CEDAW, respectively.
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who initiated it. On the contrary, it is often denied. Indeed, even if
local officials, legislatures, or activists want to adopt an international
standard and avoid nationalist or parochial resistance, it would be
wise of them to play down the fact that it is in fact an international
norm that they are trying to internalize.
2.
Where States Fail, Local Governments Might Succeed
The fact that states dislike being the enforcers of international
norms is well known. It can be explained as pure egotism (“someone
else will do the job”), narrow self-interest, or better yet as a classical
problem of collective action. As Eyal Benvenisti shows, the global
goodness conferred by the impact of international law, and especially
of international human rights law can be viewed as a “public good.”
Once this good is produced, those who endeavored to produce it
cannot exclude others from enjoying it (the goods are non-exclusive),
and the quality of the goods is not diminished by others who
consume it (the goods are non-rivalrous).172 Thus, states that enjoy
the progress and stability that is achieved worldwide—shirk and
refuse to participate in the production of this good by enforcing it.
States prefer to continue doing business with states that violate
human rights and other international standards and let other states
boycott the “rogue” state or who take other measures against it.173
This collective action problem might cause a general lack of
enforcement of international norms, and create a serious problem for
those who care about the efficacy of the international legal system.
However, where states fail, localities might succeed. Locally
initiated adoption of international norms is often easier to achieve
due to various reasons. First, homogeneity of values and preferences
of the citizenry is more common in localities than it is in states.
Second, it is often easier to mobilize residents in localities in order to
achieve such reforms than it is to mobilize citizens nationwide.
Third, local governments often allow for better participation and
involvement of the public in government and thus enhance political
172. For an application of the concept and literature of public goods on international law
and specifically on the issue of the enforcement of international law as well as an analysis of
the Bush Doctrine and the difficulty of achieving global security when free riders can get
security without participating in its production, see Eyal Benvenisti, The U.S. and the Use of
Force: Double-Edged Hegemony and the Management of Global Emergencies, 15 EUR. J.
INT’L L. 677, 681–84 (2004).
173. Clearly, I am presenting a radical perspective here, intentionally ignoring many
other, more justifiable, reasons not to enforce human rights law: that the goodness that it
brings is unevenly distributed and places unequal burden on different states; that many states
are actually excluded from it; that there are good reasons not to boycott any state (for
humanitarian reasons as well as for pragmatic reasons).
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passion and care for politics.174 Fourth, patriotism and nationalism
are perhaps of lesser importance in localities and international
influence is less threatening than it is for national entities. Lastly,
adoption of international norms by a locality can serve as a means of
demonstrating its independence, autonomy, and progressiveness visà-vis the state and other “backward” localities. Internationalization is
often seen as a hallmark of progress and localities that want to adopt
an image of a global city might wish to internalize international
norms. Thus, the famous reluctance of national legislatures,
governmental agencies, and courts to internalize international norms
by directly adopting them175 might be weaker in some localities.176
3.
The Globalization of International Law
Internalization of global norms and standards demonstrates a
phenomenon related to globalization that manifests itself particularly
in localities and is called “glocalization.” This phenomenon is the
local appearance of global forces resulting in a unique hybrid arising
from the local interpretation, adaptation, or translation of global
influences. An example of glocalization is the way global chain-
174. See Roderick M. Hills, Jr., Corruption and Federalism: (When) Do Federal
Criminal Prosecutions Improve Non-Federal Democracy?, 6 THEORETICAL INQUIRIES L. 113
(2005); cf., Yishai Blank, The Resilience of Participation: A Comment on Prof. Hills 6
THEORETICAL INQUIRES L. 155 (2005); see also discussion infra Part V.A.
175. This reluctance, perhaps obvious to some, occurs for various reasons, some of
which are lack of sufficient knowledge and expertise in international law, language barriers,
fear of delegitimation of the judiciary for what might be seen as its infidelity to national
institutions, and perhaps old-fashioned nationalism. See Eyal Benvenisti, Judicial
Misgivings Regarding the Application of International Law: An Analysis of Attitudes of
National Courts, 4 EUR. J. INT’L L. 159 (1993); Mark Tushnet, The Possibilities of
Comparative Constitutional Law, 108 YALE L.J. 1225 (1999). For further discussion and
critiques of the hostility of American courts (and especially of the Rehnquist Court) to
international law in Constitutional interpretation, see Claire L’Heureux-Dube, The
Importance of Dialogue: Globalization and the International Impact of the Rehnquist
Court, 34 TULSA L.J. 15 (1998); Gerald L. Neuman, The United States Constitution and
International Law: The Uses of International Law in Constitutional Interpretation, 98 AM.
J. INT’L. 82 (2004); Powell, supra note 25, at 51; Koh, Why Do Nations Obey International
Law?, supra note 157. Specifically to local government law, the U.S. Supreme Court
refused to interpret the Constitution in a way that would give any significance to the fact that
in other jurisdictions it was found that it was efficient to let the national government
implement its policy through local governments. The majority opinion rejected Justice
Breyer’s attempt to use comparative local government law. See Printz v. United States, 521
U.S. 878 (1997); see also, Tushnet, supra, at 1232–33 (discussing the Printz decision).
176. The downside is, of course, that localities that want to demonstrate their fidelity to
national values and their resistance to globalization might refuse to “surrender” to various
global impositions even when their state accepts such edicts. The refusal of the Spanish
mayor to marry gays and lesbians might be one such example, even though the initiative to
marry same-sex couples was of the Spanish government and not the EU’s.
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stores adapt themselves to local tastes and preferences.177 Another
example is the way localities interpret global imperatives and
development schemes and implement them according to their own
unique local culture. In law, such glocalization takes place when
national courts adapt international norms and global standards to
local legal “tastes” and local legal culture. It also happens when
local actors, NGOs, activists, private individuals, and associations try
to use international and transnational norms and standards to achieve
various goals, or promote their internal agenda.
It is worth noting, that no less important than the substance of
the internalized norms are the processes that accompany it. Indeed,
local governments can decide to transform their own legal systems so
that they will comply with international norms even without the
initial support of central state organs. However, sooner or later
national consent to this local adoption will have to be granted,
implicitly or explicitly, by act or omission. Given the current
structure of international law, as long as localities cannot secede and
become fully independent, states are formally able to control the
latter’s conduct. Therefore, it means that local governments that may
try to overreach their powers and leapfrog over the central state
directly to the world might encounter some problems from the state
that will preempt, curb, and use its internal power to weaken the
rebelling city.
Yet, formal legal powers and the formal degree of
decentralization do not necessarily reflect the reality of
decentralization. As many researchers have shown, the actual
relationship between central control and local power is determined by
social and economic factors such as fiscal independence of the
locality, its political power within the state, and social networks and
capital that the locality possesses.178 Rich and powerful localities
can afford to instigate conflicts with the central government and
enjoy silent affirmation by central agents, even in cases where the
latter is displeased with their policy. In fact, as I suggested before,
strong localities might even desire such conflicts as a form of
signaling the central government and other localities about their
strength. Therefore what we might observe in the near future will be
a growing divergence among cities with respect to the level of their
“globalization” not only in the sense that Sassen and other have
177. Such is the commercial strategy of McDonald’s to adapt its design and several
dishes to local taste and sensitivities.
178. See generally FRUG, CITY MAKING, supra note 57; Barron, A Localist Critique,
supra note 57; Barron, Reclaiming Home Rule, supra note 57; GERALD E. FRUG, DAVID J.
BARRON & RICK T. SU, DISPELLING THE MYTH OF HOME RULE: THE STATE OF HOME RULE IN
THE BOSTON METROPOLITAN REGION (2003); Blank, supra note 72.
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discussed—flow of global capital, goods, and workers—but also in
how internationalized their municipal legal system has become.
An opposite phenomenon can also take place. Indeed, if local
governments become more autonomous, they can also declare their
independence, both vis-à-vis the state and vis-à-vis the world, by
resisting international law. Future domestic legal conflicts may arise
if localities begin to oppose such impositions of international norms
by claiming autonomy vis-à-vis the state and a wider “margin of
appreciation” as regards the question of the applicability of
international norms to their actions. If we are to take seriously the
idea of granting localities autonomy vis-à-vis their state, an argument
of non-applicability of conventional or customary international law
can arise in the future. And the more localities throughout the world
are seen as private entities, or legally become private by adopting the
U.S. model of homeowner associations and the privatized notion of
decentralization, the more such a “corporate veil” can protect them
from the applicability of international law. For the time being, one
would expect the rejection of such claims made by localities, due to
the fact that accepting it would amount to granting the local
government an effective right to secede.179
However, I think it is not unlikely that such legal
developments will be seen in the near future. The emergence of
localities as bearers of international duties and rights threatens the
fragile balance between local governments and central states. If
localities become de facto subjects of international norms and are
involved in IOs, and if they acquire more and more autonomy vis-àvis the state, perhaps the status of the “no secession rule” gradually
changes, if not de jure than at least de facto. In turn, such new
developments might threaten the new trinity, since it might point to a
new direction in which the distinction between localities and states
would be obliterated. Such a world would be comprised of city179. Post WWII international law rarely affirms the right of a territorial sub-national
entity to achieve autonomy vis-à-vis the state under whose jurisdiction it exists, its right to
secede (and form an independent state), or its independent existence in international law.
Undoubtedly, this reluctance is, at least in part, a result of the trauma that the splinters and
semi-states that were erected during the interwar period caused to the international legal
imagination. This general reluctance has had numerous exceptions with varying degrees of
autonomy granted to the regions, such as the South Tyrol, the Basque country, Puerto Rico,
Southern Sudan, and Eritrea. See generally MODELS OF AUTONOMY, supra note 56. The fact
that secession is so difficult to achieve and that, generally speaking, sub-central units in
federal regimes do not obtain any status in international law or any standing in international
institutions is crucial in order to understand the dependency of cities in matters of
international (or “foreign”) relations. It has dictated general submission of cities to states as
far as relationships with the world were concerned. It also limited the ability of cities to
engage in direct conflict with their states, since the “ultimate” weapon of secession was
unavailable to them, even if they were economically powerful.
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states only.
D.
Local Governments Becoming Political Actors on the World
Political Stage
The processes that I described have been entwined with the
emergence of local governments as political actors on the world
political stage. The regulation and imposition of international duties
on localities are thus accompanied by a growing representation of
localities in international entities and by the creation of various
associations whose primary goal is to facilitate cooperation among
local governments in the face of the challenge posed to them by the
new global regime.
A plethora of institutions, associations, networks, and ad hoc
activities that comprise localities and that are aimed at turning them
into principal global actors have appeared throughout the world in
recent years. Some of the associations are global and some are
regional, but they all see themselves responding to the growing
importance of localities and to the emerging understanding that local
governments are among the basic political building blocks of the new
global order. Such organizations, associations, and ad-hoc entities
include: The World Organization of United Cities and Local
Governments (UCLG);180 WACLAC;181 International Union of
Local Authorities (IULA);182 Mayors’ Organizations;183 World
Federation of United Cities (WFUC); World Urban Forum;184 The
International Council for Local Environmental Initiatives (ICLEI);
180. UCLG is probably the biggest umbrella association of local governments in the
world. It has members in one hundred and twenty-seven countries, in seven world regions
(thirty-six countries in Africa, sixteen in Asia-Pacific, eleven in Euro-Asia, thirty-four in
Europe, eight in the Middle East and West Asia, seventeen in Latin America, and five in
North America). Over a thousand cities worldwide are direct members in UCLG. See
United Cities and Local Government (UCLG), http://www.cities-localgovernments.org/uclg
(last visited Mar. 30, 2006).
181. See supra note 109.
182. Established in 1913, the IULA is the oldest cities’ organization.
183. Two major mayor organizations are: World Mayor and City Mayors.
184. The World Urban Forum gathered in Barcelona on September 2004 as an initiative
of U.N.-Habitat, following the Commission’s decision “to promote a merger of the Urban
Environment Forum and the International Forum on Urban Poverty into a new urban forum,
with a view to strengthening the coordination of international support to the implementation
of the Habitat Agenda.” The World Urban Forum, according to the U.N. General Assembly
Resolution 56/206, is a “non-legislative technical forum in which experts can exchange
views in the years when the Governing Council of the United Nations Human Settlements
Programme does not meet.”
See World Urban Forum, Dialogues, Barcelona 2004
http://www.barcelona2004.org/eng/banco_del_conocimiento/dialogos/ficha.cfm?IdEvento=
181 (last visited Mar. 30, 2006).
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Global Metro City; and the Glocal Forum.185
The meaning of the burgeoning global associations of
localities is threefold. First, it denotes a growing awareness of
localities to their importance. Second, it implies a current deficit in
localities’ effective participation in global governance projects, a
deficit that induces local governments to cooperate in order to obtain
a higher degree of influence. Finally, it marks a break from the
competitive order of the nation-states, as localities from all over the
world manage to cooperate. The rise in power of localities brings
with it institutional changes whose impact we are only beginning to
witness and understand.
These transnational local networks
demonstrate that globalization indeed works hand in hand with
localization: As states share their power with localities, the latter
group aims to increase its powers further and become full partners in
the global order. And while traditional international law is reluctant
to acknowledge local governments as full subjects, they manage to
utilize civil society mechanisms in order to better their position.
This process, seemingly a grassroots movement of localities,
is also being encouraged by international and global institutions such
as the UN and the World Bank. The UN Advisory Committee of
Local Authorities (UNACLA) was established in January 2000 in
order to strengthen the dialogue between national governments and
local governments on the implementation of the Habitat Agenda.
The members in UNACLA are “leading local government
representatives” from across the world. Its members are selected by
the UN-Habitat Executive Director, and they are supposed to be
“geographically balanced.”186 An important “partner” of UNACLA
is the UCLG, a voluntary association that now begins to exert more
official power in the international sphere of politics.
In Europe, too, such rise in the formal political importance of
localities can be observed. A clear signal of the growing power
given to representative bodies of localities is the suggestion to grant
the Committee of the Regions187 locus standi in the ECJ if the
Committee thinks that the principle of subsidiarity—that is, if
decisions were not taken at the lowest possible level—was
185. The Glocal Forum, http://www.glocalforum.org (last visited Mar. 30, 2006).
186. UCLG, supra note 180.
187. The Committee of the Regions is an official organ of the EU, defined in Part I,
Title IV, Chapter II, Article I-32 of the Draft of the European Constitution: “The Committee
of the Regions shall consist of representatives of regional and local bodies who either hold a
regional or local authority electoral mandate or are politically accountable to an elected
assembly.” Treaty Establishing a Constitution for Europe pt. I, tit. IV, ch. II, art. I-32, Oct.
29, 2004, O.J. (C310) 1.
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breached.188 This change represents the realization that localities are
not only efficient sub-contractors for the state, or entities that possess
valuable local knowledge or submissive subjects to centrally imposed
policies; they are, rather, powerful political agents with whom the
central governments need to share their power. The Council of
European Municipalities and Regions (CEMR) has also gained power
and influence, and is required to express its views as regarding
various issues that pertain to localities and decentralization.
Together, these four modalities show that globalization is
embedded not only in national territories, laws, and administrations,
as Sassen argues,189 but in their local counterparts as well. Put
differently, globalization takes place in territorial units far smaller
than the national territory of the state at large, and in the process
transforms the functioning and the meaning of the very concept of
local government. These geographical units, commonly called local
governments, are defined not merely by economic or social factors
but also by national and international laws and institutions. This
Article shows that while the literature that deals with the role of
localities in the global order treats them as social, economic, and
spatial creatures, they are also legal creatures, whose legal character
has a significant impact on the nature of globalization and on
localities’ role in this new global order.
V.
RECONSTRUCTING THE NEW TRINITY
In light of the role localities are beginning to play in the
emerging global legal order, it is timely to ask: Is it good or bad? In
other words, should the process in which local governments assume a
growing degree of influence on global governance and an increased
legal status in international law be encouraged or curbed? These are
questions with no clear answers, and given the scope of this Article, I
can only sketch some preliminary answers.
One of the inherent problems of such an investigation is that
the process that I described is itself decentralized. Globalized
localities in the developed world are very different than globalized
localities in the developing world.190 Within developing countries,
globalization also creates gaps among localities and its impact on
188. See the 2nd Protocol on the Application of the Principles of Subsidiarity and
Proportionality in the Draft of the European Constitution, supra note 122, art. 8.
189. See Saskia Sassen, The State and Globalization: Denationalized Participation, 25
MICH. J. INT’L L. 1141, 1141 (2004).
190. Luiz Cesar de Queiroz Ribeiro & Edward E. Telles, Rio de Janeiro: Emerging
Dualization in a Historically Unequal City, in GLOBALIZING CITIES, supra note 12, at 78.
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different localities is radically disparate.191 And while some
localities in developing countries have been impoverished by the
process of globalization and the quality of life in them deteriorated,
others have benefited immensely from it and for them globalization
was a blessing. What marks globalization is the fact that it is only
partly coordinated and orchestrated; most of the time the processes
that are associated with it are dispersed, decentralized, initiated by
many entities, and taking place at different paces in different
locations. Globalization is denationalization in the sense that it
creates splits within states, no longer privileging whole states en
banc. Its impacts are much more local and less national, and even if
the state might lose out on the whole, various localities can benefit,
and vice versa. As Sassen rightly noted, most traditional theories
“remain focused on the logic of relations between states and the scale
of the state at a time when we see a proliferation of non-state actors
[and] cross-border processes . . . .”192
Indeed, this Article only contributes to the confusion by
showing that the cacophony of globalization affects and comprises
localities. I therefore look into a much narrow question: Is the legal
globalization of local governments desirable, and, more specifically,
what are the unique qualities of localities that place them—if at all—
in an advantageous position when compared to other entities that
serve as vehicles for shaping globalization such as NGOs,
transnational corporations, and international institutions?
What, then, makes local governments unique entities in the
global sphere? What are the reasons that they became such important
actors in the new global legal order? As I already made very clear,
unlike the literature on global cities, it is not merely the cosmopolitan
metropolis that I have in mind when I talk about the emerging
importance of localities in the globalized world. Small localities
such as villages, towns, and suburbs also feel the push and pull of
globalization and they, too, are subject to the same norms of
international law and treaties. Where global cities literature errs, I
argue, is precisely on this point: Globalization takes place not only
in the privileged location of the mega-cities, where global goods,
images, and workers meet in a spectacular way, but also in suburbs
191. In Cities in the International Marketplace, the writers show how radically different
the impact of globalization can be on cities in Europe and the United States. See generally
SAVITCH & KANTOR, supra note 12; see also Blair Badcock, The Imprint of the Post-Fordist
Transition on Australian Cities, in GLOBALIZING CITIES, supra note 12, at 186 (discussing
cities in Australia); Roger Keil & Klaus Ronneberger, The Globalization of Frankfurt am
Main: Core, Periphery and Social Conflict, in GLOBALIZING CITIES, supra note 12, at 228
(noting social splits and inequalities created in Frankfurt).
192. See Sassen, supra note 106, at 1149.
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and towns that are being subjected to the same international legal
norms, transnational treaties, and World Bank lending conditions.
And though the level of the impact might indeed vary from one place
to the other, the normative legal background remains the same.
Furthermore, since the state, emasculated as it might be, is still very
much in place, we must to take into account the domestic legal
regime in order to figure out the relative power of small towns vis-àvis big cities and vis-à-vis the state.
Indeed, suburbs and small towns, too, can be politically
involved in global politics, as the case of local enforcement of human
rights demonstrates, and they too can aspire to achieve the image of a
global city. Sometimes they can do so by becoming global economic
nodes, or, at other times, by turning themselves into enforcers in the
human rights community. As Appadurai argues, one of the unique
traits of globalization, and an importance source for its rapid success,
is that it can also operate in the level of cultural images and
identifications, and these are sometimes easy to change.193 This
Article shows that sometimes legal changes can be a way in which
localities can transport themselves onto the international plane and
globalize themselves.
As earlier mentioned, most justifications for the global
decentralization project are based on the belief that it will promote
efficiency and democracy. But is it really so? Even if we accept the
assumption (which I discussed briefly earlier on) that economic
theory is correct in predicting that delegating authorities to the lowest
possible level (i.e., local governments) would improve public
services and increase growth, some questions still remain: What are
the other consequences of such global decentralization and is
democracy served when we empower localities in the global sphere?
Indeed, some of the negative consequences of
decentralization are well known. It can cause inequality, negative
externalities, collective action problems, and increased
fragmentation.194 These problems, once transported onto the global
193. See generally Appadurai, supra note 13.
194. Many of these problems are dealt with by various scholars.
Regionalism is
understood to be one of the most important solutions to problems of coordination,
externalities, and even human rights abuses. See, e.g., BENVENISTI, supra note 92; SAVITCH
& KANTOR, supra note 12. The tensions between cities and regions have not yet emerged in
international law. Since, for the time being, both are seen as weak and subsumed by the
state and thus paired together vis-à-vis the state, the obvious opposition between them has
not become a matter of international law. And since neither are fully recognized legal
entities in international law doctrine, both are equally absent from the discussion of the new
world order, with a few exceptions. However, as we clearly know from the national context,
regions have emerged as important entities in various ways, and the more cities and regions
become powerful political units, the more one can expect tensions and struggles between
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sphere actually mean that splits within states might be created and
that the more we decentralize, the more states are weakened. This
can cause states to “panic” and attempt to fight the pressures to
decentralize themselves, but it is unclear whether they currently have
the power to do so. As I have described, the current trend in
international and global institutions is clearly in the direction of
decentralization. It is possible that globalization has gone so far that
local elites have already become strong enough to overcome the
national elites, or that local elites have reached the stage of
understanding that they are better served by cooperating with local
elites from other countries and with other elements of the global civil
society such as NGOs, and transnational corporations.
Other writers seem to implicitly assume that globalization
happens everywhere nowadays and there is no room for the surprise
that localities, too, are globalizing like other human associations,
corporations, and communities. Others merely stress the fact that
localities are already “out there,” dealing with the daily problems
globalization creates and should therefore be better utilized. As the
World Bank notes, localities are the “ground troops in responding to
the imposing demands for jobs, infrastructure, finance, and effective
governance.”195 Indeed, localities have been extremely resilient
because they have managed to recompose themselves as nonstate
actors and even went further to reconfigure themselves as private
actors. Private entities have become part of the new global
governance system, and under dominant ideology of global policy
makers are preferred over governments and state agents that are often
thought to be corrupt and inefficient.196 And local governments’
reconfiguration as private corporations is not that farfetched because
they have always stepped on the thin line between being a private
association and being a public one. Indeed, this reconfiguration of
local governments into non-governments has been so successful that
only recently, the “Report of the Panel of Eminent Persons on United
Nations-Civil Society Relations” (the Cardoso Report), submitted to
UN General Secretary Kofi Annan in 2004, treated them as “civil
society” elements.197
them. This is true also in the legal field.
195. CITIES IN TRANSITION, supra note 59, at 35.
196. See generally THE EMERGENCE OF PRIVATE AUTHORITY IN GLOBAL GOVERNANCE
(Rodney Bruce Hall & Thomas J. Biersteker eds., 2002).
197. The Cardoso Report included two important proposals with respect to the status of
local governments in the global governance project: According to Proposal 17, “[t]he
General Assembly should debate a resolution affirming and respecting local autonomy as a
universal principle”; Proposal 18 states that “[t]he United Nations should regard United
Cities and Local Governments as an advisory body on governance matters.” Report of the
Panel of Eminent Persons on United Nations—Civil Society Relations, We the peoples:
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What I would mostly like to stress, however, is the unique
dualism of localities—being state agents on the one hand, and
voluntary human associations (often of defined communities) on the
other hand—that distinguishes them from other entities that are,
admittedly, also part of the new global order, and that might serve as
a better basis for the normative justification of local governments as
desirable agents for globalization. It is local governments’ singular
political potential that can turn globalization from a top-down
governance project into a radically democratic project.
Localities throughout the globe have, by and large,
maintained their basic democratic aspect, since in many of them
some form of democratic elections are mandated by the law in order
to choose local officials. Though in various places across the world
there are attempts to limit popular participation (even in the form of
elections) in local governments,198 and in some cases local
governments are appointed by the central governments without any
local democratic participation, it is still the case that in most places
local democracy prevails, at least formally. The UN, the World
Bank, the EU, and other global and international institutions support
a further strengthening of this trend of popular participation in
government.
Proponents of local empowerment justify their position
through the virtues of localism:
economic efficiency and
development, more direct and accountable democracy, and the
unique ability of local governments to serves as normative mediators
between communities and governments, and between local groups
and national majorities. In particular, public choice theory has
generated great distrust in central governments due to their
susceptibility for capture by rent-seeking interest groups, and
combined with the Tieboutian model of local expenditures, created a
default rule in favor of delegation of power to local governments. In
addition, scholars tried to show why democracy is also better served
by strengthening local governments. First, the small scale of most
localities allows people to exchange ideas and deliberate on a daily
basis. Second, public officials cannot hide away from their
constituents, hence they are reasonably more accountable and
responsive to their constituent’s needs. Third, since popular
involvement in politics is a function of how much they feel their
involvement really matters, positive feedback increases participation.
Civil Society, the United Nations and Global Governance, U.N. Doc. A/58/817 (June 11,
2004).
198. President Putin’s current attempt to curb municipal power in Russia is an example
of such a centralist effort.
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Fourth, the substance of local politics is often more intuitively
understood by lay people and it is therefore easier to overcome voter
apathy. Lastly, the relative homogeneity of the local populace makes
it easier to reach consensus and allow people to deliberate even
politically charged matters.199
But these justifications are somewhat anachronistic and
inaccurate. The variance among localities is so enormous that
looking at all of them as if they were all small towns ignores the
reality of mega-cities, sometimes bigger in size and population than
many countries. And it is overly optimistic in that it trusts formal
democracy to naturally produce public deliberation and
participation.200 As the experience in the United States suggests,
making democracy work and inducing weak populations to
participate in politics requires an active and positive effort on behalf
of the ruling regime and a transformation of the political systems that
exceeds the oft empty slogan “decentralization.”201 Indeed, power
sharing is not a natural outcome of smallness, proximity, or
technology.
However, the material conditions that often exist in localities,
including smallness, proximity, sharing the same physical and
political space with fellow citizens, might be conducive to the
fulfillment of the promise of the city.202 The city can serve as an
ideal. Its unique legal structure, the inability and unwillingness to
“solve” the ambivalences of localities as democratic yet bureaucratic,
public yet private, state agents yet autonomous, is what enables these
spatial conditions to facilitate their transformation into being, again,
what stands at the forefront of human civilization. Even if big,
pluralistic, and multicultural, they suggest a possibility to imagine a
community in a more concrete and real way than the imagination of
the national community (or, for that matter, the entirely abstract
community of mankind).203 If every group is always somewhat
imaginary, what singles out the city as a figure and the locality as the
general legal concept that captures its essence is that it is still
grounded in daily experiences, even if it clearly also imagined. On
the other hand, unlike other “real” group or communitarian
199. For a comprehensive overview, see generally Hills, supra note 57.
200. See generally Blank, supra note 174.
201. See Edward L. Rubin, Getting Past Democracy, 149 U. PA. L. REV. 711 (2001);
ARCHON FUNG, EMPOWERED PARTICIPATION: REINVENTING URBAN DEMOCRACY (2004).
202. For an idealistic view of the promise inherent to cities, see David J. Barron, The
Promise of Cooley’s City: Traces of Local Constitutionalism, 147 U. PA. L. REV. 487
(1999).
203. See generally BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE
ORIGIN AND SPREAD OF NATIONALISM (1983).
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identifications, belonging to a city is usually not based on race,
religion, gender, ethnicity, or other “immutable” or inherited traits.
The locality is both a material place and a political-legal
organization, and thus it enables people and communities to envision
their place in a concrete way. The possibility to imagine a specific
place and often very specific people as being members of the same
political body is what renders the locality a promising possibility.204
VI.
CONCLUSION
The rise of localism in international law is only beginning to
impact localities and states throughout the world. Already, however,
localities have begun to operate in at least three ways as normativeregulative agents. Local governments are vessels through which
world ideas reach individuals and communities, they are instruments
of democratic organization through which communities and various
groups of individuals can appear and act on the world stage, and they
are serving as material and political frameworks for envisioning
space, as ideals for configuring the relationship between the world
and a specific locale.
Local governments are still important normative mediators
between communities and the state in the national sphere; however,
more and more they are also mediating conflicting demands and
values in the international plane, between states and global actors.
Indeed, states’ sovereignty, compromised as it may be, still plays a
major role not only in international law but also in regulating the
activities of globalized cities and other localities worldwide. Thus,
the order that this Article sought to describe is not one in which the
state is a ghostly entity, replaced by the world on one hand and by
local governments on the other hand, but one in which all three
parties are becoming entangled and equally important. Thus, the new
trinity of the world-state-city currently characterizes the new
dynamics in international law and in domestic legal systems.
The process of globalization that is unfolding in front of our
eyes reflects a novel governance strategy that sees localities as
vehicles for a global dissemination of contemporary ideas and
political theories (democratization, multiculturalism, and efficiency).
It is this unique intersection of ideology, political theory, and
governance strategy that the current “turn to the local” in the global
204. I would like to distance myself from the notion developed by Iris Young that cities
breed the ideal of “living together with strangers.” See generally IRIS M. YOUNG, JUSTICE
AND THE POLITICS OF DIFFERENCE (1990).
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sphere is taking place. And the legal transformation that we are
witnessing is a part of and a result of this turn, whose future lies
ahead.